Conditions of Lending. 8.1 Conditions Precedent to Making of Revolving Loans and Issuing Letters of Credit on the Effective Date. (a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document. (b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates. (c) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Date. (d) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counsel. (e) The Agent shall have received: (i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation; (ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and (iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove. (f) No Material Adverse Effect shall have occurred since September 30, 2021. (g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby. (h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29. (i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves. (j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter. (k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5). (l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent. (m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date. (n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made. (o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate. (p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business. (q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Conditions of Lending. 8.1 ISSUANCE, AMENDMENT, EXTENSION ------------------------------------------------------ AND RENEWAL OF LETTER OF CREDIT ------------------------------- SECTION
3.01. Conditions Precedent to Making the -------------------------- Amendment and Restatement and to the Corresponding -------------------------------------------------- Borrowing. The effectiveness of Revolving Loans the amendment and Issuing Letters --------- restatement of the Original Credit Agreement pursuant to the terms hereof, the making of any Triple-A Loan on any Contract Grant Date, and the obligation of the L/C Bank to issue the Letter of Credit on is subject to satisfaction of each of the Effective Date.following conditions precedent:
(a) This Agreement Each of the Administrative Agent, the Collateral Agent, Triple-A and the other Loan Documents L/C Bank shall have been executed by received all of the Borrowersdocuments, covenants, authorizations, agreements and instruments described on the List of Closing Documents attached as Exhibit C hereto (including, without --------- limitation, the Contract Schedule, giving effect to the Grant of Contracts contemplated to correspond with the Effective Restatement Date, the 1996 Interest Rate Hedge, and the 1996 Interest Rate Hedge Assignment), each in form and substance satisfactory to the Administrative Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenantsL/C Bank, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with each case where applicable (x) duly executed by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral each of the type parties thereto, (y) to the extent required in Exhibit C, duly filed with the appropriate --------- filing officer or other governmental authority of the listed jurisdiction, as evidenced by an appropriate acknowledgment evidencing that such filing is of record, and priority described in each applicable Security Document.(z) dated and/or certified (as applicable) as of a date reasonably acceptable to the Administrative Agent and the L/C Bank;
(b) All representations fees and warranties made hereunder expenses due and in owing under the other Loan Facility Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Date.
(d) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counsel.
(e) The Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by all fees and expenses payable under the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent Fee Letter and the Lenders, a perfected Lien on the Collateral, prior and superior L/C Fee Letter entered into in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordationconnection with this Credit Agreement) shall have been paid;
(iic) estoppel documentationEach of the Collateral Agent, PPSA or termination or discharge statements (the Administrative Agent, Triple-A, the L/C Bank and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and Surety shall have received such other instrumentsapprovals, documents or opinions as it may reasonably request;
(d) In connection with the Triple-A Loan and the Grant of Contracts contemplated to correspond with the Effective Restatement Date, and the issuance (if any) of the Letter of Credit on the Effective Restatement Date, each of the conditions precedent set forth in Section 3.02 have been ------------ satisfied;
(e) The Certificate of Incorporation of the Borrower shall have been amended pursuant to an amendment in form and substance reasonably satisfactory acceptable to the Agent, as shall be necessary to terminate Collateral Agent and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.L/C Bank;
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment Each of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent S&P and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver '▇ shall have confirmed to the Administrative Agent that the Triple-A Loans constitute an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and "investment grade" risk, without reliance on the Agent or any other Lender as giving effect to the satisfaction of any condition precedent set forth in this Section 8.1, and Surety Bonds;
(iiig) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderCapMAC's Underwriting Committee shall have approved the transactions contemplated by the Facility Documents; and
(h) FNBB's Credit Committee shall have approved the transactions contemplated by the Facility Documents.
Appears in 1 contract
Conditions of Lending. 8.1 Section 4.1 Conditions Precedent to the Lender's Willingness to Consider Making MBS Revolving Advances. The Lender's willingness to consider making an initial MBS Revolving Advance hereunder shall be subject to the condition precedent that the Lender shall have received all of Revolving Loans the following, each in form and Issuing Letters of Credit on substance satisfactory to the Effective Date.Lender:
(a) This Agreement and the other Loan Documents shall have been Agreement, properly executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security DocumentBorrower.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified dateThe D&E Credit Agreement, which shall be true and correct on all material respects as of such specified dates.properly executed by D&E.
(c) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of The Hydra-Mac Credit to be issued on the Effective DateAgreement, properly executed by Hydra-Mac.
(d) The Agent and Note, properly executed by the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counselBorrower.
(e) The Agent shall have received:
(i) each document (including, without limitation, A true and correct copy of any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made leases pursuant to other Requirement of Law or statutes to perfect or render opposable which the Borrower is leasing the Premises, together with a security interest or Lien on the Collateral or any part thereof made landlord's disclaimer and consent with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabovelease.
(f) No Material Adverse Effect shall have occurred since September 30The Collateral Account Agreement, 2021properly executed by the Borrower, D&E, Hydra-Mac and Norwest Bank Minnesota, National Association.
(g) There shall exist no actionThe Lockbox Agreement, suitproperly executed by the Borrower, investigationD&E, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality thatHydra-Mac and Norwest Bank Minnesota, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or therebyNational Association.
(h) Each Loan Party shall Current searches of appropriate filing offices showing that (i) no state or federal tax liens have established Blocked Account Agreements been filed and remain in respect effect against the Borrower, (ii) no financing statements or assignments of its deposit accounts for collections patents, trademarks or copyrights have been filed and remain in effect against the Borrower except those financing statements and assignments of Accounts at a Clearing Bank reasonably acceptable patents, trademarks or copyrights relating to Permitted Liens or to liens held by Persons who have agreed in writing that upon receipt of proceeds of the Advances, they will deliver UCC releases and/or terminations and releases of such assignments of patents, trademarks or copyrights satisfactory to the Agent Lender, and shall cause (iii) the Lender has duly filed all proceeds of Accounts financing statements necessary to be deposited thereinperfect the Security Interest, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29extent the Security Interest is capable of being perfected by filing.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each A certificate of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory Borrower's Secretary certifying as to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) resolutions of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such dateBorrower's directors, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidenceif required, in formits shareholders, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effectDocuments, (Dii) that such Loan Party’s certificate or the Borrower's articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinaboveand bylaws, and (Eiii) as the signatures of the Borrower's agents authorized to execute and deliver the Loan Documents and other instruments, agreements and certificates, including Advance requests, on the Borrower's behalf.
(j) A current certificate issued by the Secretary of State of [Minnesota], certifying that the Borrower is in compliance with all applicable organizational requirements of the State of [Minnesota].
(k) Evidence that the Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary.
(l) A support agreement in favor of the Lender, properly executed by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in his personal capacity.
(m) An opinion of counsel to the incumbency Borrower and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewiththe Guarantors, as applicable; and a certificate of another of such Loan Party’s Officers as addressed to the incumbency and signature Lender.
(n) Certificates of the officer signing such certificateinsurance required hereunder, with all hazard insurance containing a lender's loss payable endorsement in the Lender's favor and with all liability insurance naming the Lender as an additional insured.
(o) A separate guaranty, properly executed by each Guarantor, pursuant to which each Guarantor unconditionally guarantees the full and prompt payment of all Obligations.
(p) The Agent shall have received certificates of statusMRI Security Agreement, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date properly executed by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its businessMRI.
(q) The Agent shall have received a certificate from a Responsible Officer Payment of the Borrowers, dated as fees and commissions due through the date of the Effective Date, certifying as to the matters in Sections 8.1(b) initial MBS Revolving Advance and (c). The acceptance expenses incurred by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed Lender through such date and required to be a representation and warranty made paid by the Borrowers to Borrower under Section 8.3, including all legal expenses incurred through the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart date of this Agreement shall be deemed confirmation by such Agreement.
(r) Such other documents as the Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderits sole discretion may require.
Appears in 1 contract
Sources: Credit and Security Agreement (Magnum Resources Inc /De/)
Conditions of Lending. 8.1 Conditions Precedent The obligations of the 2016 Refinancing Term B Lenders and the Incremental Term B Lenders to Making of Revolving make 2016 Refinancing Term B Loans and Issuing Letters of Credit Incremental Term B Loans, as applicable, on the Effective Date are subject to the satisfaction (or waiver in accordance with Section 9.08 of the Existing First Lien Credit Agreement) of the following conditions (the date of such satisfaction or waiver, the “Effective Date.”):
(a) This Agreement The Administrative Agent (or its counsel) shall have received (i) from each 2016 Refinancing Term B Lender, (ii) from each Incremental Term B Lender and (iii) from each of Parent Holdco, Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other Loan Documents shall have been executed by the Borrowersmeans of electronic transmission (e.g., the Agent and the Lenders “pdf”)) that such party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have has signed a perfected security interest and Lien in the Collateral counterpart of the type and priority described in each applicable Security Documentthis Agreement.
(b) All representations and warranties made hereunder The Administrative Agent shall have received a Borrowing Request as set forth in Section 4 above and in accordance with Section 2.03 of the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified datesCredit Agreement.
(c) No Default or Event of Default The Borrower shall have occurred and be continuing after giving effect paid to the Revolving Loans Administrative Agent, for the ratable account of each Existing Term B Lender immediately prior to be made and any Letter of Credit to be issued on the Effective Date, simultaneously with the making of the 2016 Refinancing Term B Loans, all accrued and unpaid interest, fees and other amounts accrued and unpaid on the Existing Term B Loans to, but not including, the Effective Date, and substantially simultaneously with the borrowing of the 2016 Refinancing Term B Loans, the Existing Term B Loans shall be paid in full.
(d) The Agent Substantially simultaneously with the borrowing of the Incremental Term B Loans, all outstanding principal amounts under the Second Lien Credit Agreement shall be paid in full, together with all accrued and unpaid interest, fees and other amounts accrued and unpaid thereunder and all Liens granted thereby in favor of the Lenders Secured Parties (as defined in the Second Lien Credit Agreement) shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, been released and substance reasonably satisfactory to the Agent, and its counseldischarged.
(e) The Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Administrative Agent shall have received a certificate of an Responsible Officer the Secretary or Assistant Secretary or similar officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, Party dated the Effective Date Date.
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date,
(Aii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the certificate by-laws (or articles of incorporation partnership agreement, limited liability company agreement or other constitutive or organizational equivalent constituent and governing documents, in each case amended to date, ) of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, Party as in effect on the date of such certificate Effective Date and at all times since a date prior to the date of the resolution resolutions described in item clause (Civ) belowbelow or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (Cor partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date,
(iv) certifying that attached thereto is a true and complete copy of a resolution resolutions duly adopted by such Loan Party’s the Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement and the other Loan Documents to which it such Loan Party is a partyparty and, in the case of the Borrower, the borrowings hereunder, and that such resolution has resolutions have not been modified, rescinded or amended and is are in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown effect on the certificate of good standing furnished hereinabove, and Effective Date,
(Ev) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party’s officers executing this Agreement , and
(vi) certifying as to the absence of any pending proceeding for the dissolution or any other liquidation of such Loan Document delivered in connection herewith or therewithParty or, as applicable; and a certificate to the knowledge of another such person, threatening the existence of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(pf) The Administrative Agent shall have received, on behalf of itself and the Lenders, a written opinion of P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ LLP (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(g) The Administrative Agent shall have received certificates all fees payable thereto or to any 2016 Refinancing Arranger, any 2016 Refinancing Term B Lender or any Incremental Term B Lender, on or prior to the Effective Date and, to the extent invoiced at least three Business Days prior to the Effective Date, reimbursement or payment of statusall reasonable and documented out-of-pocket expenses (including reasonable fees, certificates charges and disbursements of good standing, existence D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP) required to be reimbursed or its equivalent with respect to each Loan Party certified as of a recent date paid by the appropriate Governmental Authorities Loan Parties hereunder or under any Loan Document on or prior to the Effective Date (which amounts may be offset against the proceeds of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its businessLoans made hereunder).
(qh) The Administrative Agent shall have received on or prior to the Effective Date all documentation and other information required by Section 3.25(a) of the Existing First Lien Credit Agreement, to the extent such information has been requested not less than three (3) Business Days prior to the Effective Date.
(i) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer Person of the Borrowers, Borrower dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1Sections 5(b) and 5(d) hereof.
(j) The Administrative Agent shall have received, and (iii) all documents sent for the account of the Incremental Term B Lenders, upfront fees in an amount equal to such Lender for approval, consent or satisfaction were acceptable to such Lender0.25% of the Incremental Term B Loan Commitments.
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (Hostess Brands, Inc.)
Conditions of Lending. 8.1 Conditions Precedent to Making of Revolving Loans and Issuing Letters of Credit the Term Loan on the Effective Closing Date.. The several obligations of the Lenders to make the Term Loan on the Closing Date are subject to the following conditions precedent having been satisfied or waived in a manner satisfactory to the Agent and each Lender:
(a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent and the Lenders each party hereto on the Effective Date thereto and each Loan Party Borrower shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party the Borrowers before or on the Effective such Closing Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations to the extent they relate specifically and warranties made as of a specified only to an earlier date, which shall be true and correct on all material respects as of such specified dates.
(c) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans Term Loan to be made and any Letter of Credit to be issued on the Effective Closing Date.
(d) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties Parent and the other Borrowers as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and its their respective counsel.
(e) The Agent shall have received ALTA title policies, in form and substance reasonably acceptable to Agent, with respect to the Mortgages.
(f) The Agent shall have received each of the material Revolving Credit Documents, in each case, duly executed and in full force and effect, and certified by the Secretary of Parent as being a true, correct, and complete copy thereof.
(g) The Agent shall have received:
(i) original copies of proper financing statements, duly executed by each document (including, without limitation, any PPSA Borrower on or other financing statement) required by before the Security Documents or any other Loan Document or reasonably requested by Closing Date under the UCC of all jurisdictions that the Agent to be filed, registered may deem necessary or recorded desirable in order to create in favour of perfect the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted 's Liens), and in proper form for filing, registration or recordation;; and
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person duly executed UCC-3 Termination Statements and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property Property of the Loan Parties, Parent and the other Borrowers except Permitted Liens; and
(iii) the results of a search of tax Liens and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made Liens permitted pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or therebySection 7.18.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties Borrowers shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letterextent invoiced.
(ki) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement Agreement.
(includingj) The Agent and the Lenders shall have had an opportunity, without limitationif they so choose, to examine the certificates books of insurance account and other records and files of the Borrowers and to make copies thereof, and to conduct a pre-closing audit, and the results of such examination and audit shall have been satisfactory to the Agent and the Lenders in all respects.
(k) All proceedings taken in connection with the execution of this Agreement, all Loan Documents and all documents required by Section 7.5)and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent and the Lenders.
(l) The Borrowers Agent shall have delivered a Borrowing Base Certificate (and supporting information) to received such evidence as the Agent may require demonstrating that the Borrowers have received not less than $115,000,000 in form and scope satisfactory to unrestricted cash proceeds from the AgentPension Reversion.
(m) The Borrowers and each completion by Agent of its due diligence in connection with the Guarantors shall have provided Loan Documents, with the documentation and other information results thereof being acceptable to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such dateAgent.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated execution and delivery by Agent and Revolver Agent of an Intercreditor Agreement in accordance with form and substance satisfactory to Agent and the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and madeLenders.
(o) The Agent Borrowers shall have received a certificate of an Responsible Officer of each of no liability under the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (Ai) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, Foreign Bank Guaranties and (Eii) as corporate Guaranties to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificatebanks reflected on Schedule 8.1(o) shall have terminated.
(p) The Stock pledges in favor of Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect pursuant to each Loan Party certified as of a recent date documents approved by the appropriate Governmental Authorities Agent of the province, state or stock of the Borrowers other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its businessthan the Parent.
(q) The Agent Without limiting the generality of the items described above, the Borrowers and each Person guarantying or securing payment of the Obligations shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as delivered or caused to be delivered to the matters Agent (in Sections 8.1(b) form and (csubstance reasonably satisfactory to the Agent), the financial statements, instruments, resolutions, documents, agreements, certificates, opinions and other items set forth on the "Closing Checklist" delivered by the Agent to the Borrowers prior to the Closing Date. The acceptance by the Borrowers of any Revolving Loans the Term Loan made or any Letters of Credit issued on the Effective Closing Date shall be deemed to be a representation and warranty made by the Borrowers each Borrower to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit Term Loan have been satisfiedsatisfied or waived by the Lenders, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowerseach Borrower, dated the Effective Closing Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approvalapproval consent, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Loan Agreement (Unitrin Inc)
Conditions of Lending. 8.1 Conditions Precedent The obligations of the 2016 Refinancing Term B Lenders and the Incremental Term B Lenders to Making of Revolving make 2016 Refinancing Term B Loans and Issuing Letters of Credit Incremental Term B Loans, as applicable, on the Effective Date are subject to the satisfaction (or waiver in accordance with Section 9.08 of the Existing First Lien Credit Agreement) of the following conditions (the date of such satisfaction or waiver, the “Effective Date.”):
(a) This Agreement The Administrative Agent (or its counsel) shall have received (i) from each 2016 Refinancing Term B Lender, (ii) from each Incremental Term B Lender and (iii) from each of Parent Holdco, Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other Loan Documents shall have been executed by the Borrowersmeans of electronic transmission (e.g., the Agent and the Lenders “pdf”)) that such party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have has signed a perfected security interest and Lien in the Collateral counterpart of the type and priority described in each applicable Security Documentthis Agreement.
(b) All representations and warranties made hereunder The Administrative Agent shall have received a Borrowing Request as set forth in Section 4 above and in accordance with Section 2.03 of the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.Credit Agreement. 4
(c) No Default or Event of Default The Borrower shall have occurred and be continuing after giving effect paid to the Revolving Loans Administrative Agent, for the ratable account of each Existing Term B Lender immediately prior to be made and any Letter of Credit to be issued on the Effective Date, simultaneously with the making of the 2016 Refinancing Term B Loans, all accrued and unpaid interest, fees and other amounts accrued and unpaid on the Existing Term B Loans to, but not including, the Effective Date, and substantially simultaneously with the borrowing of the 2016 Refinancing Term B Loans, the Existing Term B Loans shall be paid in full.
(d) The Agent Substantially simultaneously with the borrowing of the Incremental Term B Loans, all outstanding principal amounts under the Second Lien Credit Agreement shall be paid in full, together with all accrued and unpaid interest, fees and other amounts accrued and unpaid thereunder and all Liens granted thereby in favor of the Lenders Secured Parties (as defined in the Second Lien Credit Agreement) shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, been released and substance reasonably satisfactory to the Agent, and its counseldischarged.
(e) The Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Administrative Agent shall have received a certificate of an Responsible Officer the Secretary or Assistant Secretary or similar officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, Party dated the Effective Date Date. (i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since the Closing Date, (Aii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official), (iii) either (x) certifying that attached thereto is a true and complete copy of the certificate by-laws (or articles of incorporation partnership agreement, limited liability company agreement or other constitutive or organizational equivalent constituent and governing documents, in each case amended to date, ) of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, Party as in effect on the date of such certificate Effective Date and at all times since a date prior to the date of the resolution resolutions described in item clause (Civ) belowbelow or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Closing Date, (Civ) certifying that attached thereto is a true and complete copy of a resolution resolutions duly adopted by such Loan Party’s the Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement and the other Loan Documents to which it such Loan Party is a partyparty and, in the case of the Borrower, the borrowings hereunder, and that such resolution has resolutions have not been modified, rescinded or amended and is are in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown effect on the certificate of good standing furnished hereinaboveEffective Date, and 5 (Ev) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party’s officers executing this Agreement , and (vi) certifying as to the absence of any pending proceeding for the dissolution or any other liquidation of such Loan Document delivered in connection herewith or therewithParty or, as applicable; and a certificate to the knowledge of another such person, threatening the existence of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(pf) The Administrative Agent shall have received, on behalf of itself and the Lenders, a written opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(g) The Administrative Agent shall have received certificates all fees payable thereto or to any 2016 Refinancing Arranger, any 2016 Refinancing Term B Lender or any Incremental Term B Lender, on or prior to the Effective Date and, to the extent invoiced at least three Business Days prior to the Effective Date, reimbursement or payment of statusall reasonable and documented out-of-pocket expenses (including reasonable fees, certificates charges and disbursements of good standing, existence ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or its equivalent with respect to each Loan Party certified as of a recent date paid by the appropriate Governmental Authorities Loan Parties hereunder or under any Loan Document on or prior to the Effective Date (which amounts may be offset against the proceeds of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its businessLoans made hereunder).
(qh) The Administrative Agent shall have received on or prior to the Effective Date all documentation and other information required by Section 3.25(a) of the Existing First Lien Credit Agreement, to the extent such information has been requested not less than three (3) Business Days prior to the Effective Date.
(i) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer Person of the Borrowers, Borrower dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1Sections 5(b) and 5(d) hereof.
(j) The Administrative Agent shall have received, and (iii) all documents sent for the account of the Incremental Term B Lenders, upfront fees in an amount equal to such Lender for approval, consent or satisfaction were acceptable to such Lender0.25% of the Incremental Term B Loan Commitments.
Appears in 1 contract
Conditions of Lending. 8.1 Conditions Precedent SECTION 3.01. CONDITIONS PRECEDENT TO THE MAKING OF THE INITIAL REVOLVING CREDIT LOAN AND THE ISSUANCE OF THE INITIAL LETTER OF CREDIT. The obligation of the Lenders to Making make the initial Revolving Credit Loans contemplated by this Agreement and the obligation of Revolving Loans and the Issuing Letters Bank to issue the initial Letter of Credit on or create the Effective Date.initial B/A contemplated by this Agreement is subject to the following conditions precedent, the satisfaction of which shall be, and each of which shall be in form and substance, satisfactory to the Administrative Agent, the Lenders and their counsel:
(a) This The Administrative Agent shall have received the Revolving Credit Notes duly executed and payable to the order of each of the Lenders.
(b) The Administrative Agent shall have received certified (as of the date of this Agreement) copies of the resolutions of the Board of Directors of the Borrower authorizing the Loans and authorizing and approving this Agreement and the other Loan Documents and the execution, delivery and performance thereof and certified copies of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Loan Documents.
(c) The Administrative Agent shall have been executed by received certified (as of the Borrowersdate of this Agreement) copies of the resolutions of the Board of Directors and, if required under applicable law, the shareholders of each of the Guarantors, authorizing and approving this Agreement, its Confirmation of Guaranty and any other Loan Document applicable to such Guarantors, and the execution, delivery and performance thereof and certified copies of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement, its Confirmation of Guaranty and the other Loan Documents.
(d) The Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary (attested to by another officer) of the Borrower certifying: (i) the names and true signatures of the officer or officers of the Borrower authorized to sign this Agreement, the Notes and the other Loan Documents to be delivered hereunder on behalf of the Borrower; and (ii) there have been no amendments or modifications to the Borrower's by-laws or certificate of incorporation since February 25, 2000.
(e) The Administrative Agent shall have received a Certificate of the Secretary or an Assistant Secretary (attested to by another officer) of each of the Guarantors certifying (i) the names and true signatures of the officer or officers of such Guarantor authorized to sign this Agreement, its Confirmation of Guaranty and any other Loan Documents to be delivered hereunder on behalf of such Guarantor; (ii) there have been no amendments or other modifications to such Guarantor's by-laws or certificate of incorporation since February 25, 2000; and (iii) the stock ownership of such Guarantor.
(f) The Administrative Agent shall have received a certificate of existence and good standing with respect to the Borrower and each Guarantor from the Secretary of State (or equivalent officer) of the state of incorporation of the Borrower and each Guarantor and from the Secretary of State (or equivalent officer) of any state in which the Borrower or each Guarantor is authorized to do business.
(g) The Administrative Agent shall have received an opinion, addressed to the Administrative Agent and each of the Lenders, of Proskauer Rose, LLP, counsel for the Borrower and the Guarantors as to certain matters referred to in Article IV hereof and as to such other matters as the Administrative Agent or its counsel may reasonably request.
(h) The Administrative Agent shall have received from each Guarantor, an executed Confirmation of Guaranty.
(i) The Administrative Agent shall have received evidence that the Borrower and each Guarantor maintain adequate casualty and liability insurance, with financially sound and reputable insurance companies or associations, in such amounts and covering such risks as are usually carried by companies engaged in similar businesses and owning properties and doing business in the same general areas in which the Borrower and the Guarantors operate.
(j) The Administrative Agent shall have received and satisfactorily reviewed all credit agreements and other similar agreements described in Section 4.01(t) of this Agreement.
(k) The Administrative Agent shall have received and satisfactorily reviewed, a copy of the Borrower's "Capital Appropriations Request" for the North Carolina expansion, approved by senior management of the Borrower, which shall include the costs to be incurred, the timing of the expenditures and the cash flows resulting from the North Carolina Expansion.
(l) The Administrative Agent shall have received and satisfactorily reviewed (x) the management prepared draft of the consolidated and consolidating financial statements of the Borrower and its Consolidated Subsidiaries for the fiscal year ended December 31, 2001 and a draft compliance certificate of the Borrower for the fiscal year ended December 31, 2001 demonstrating compliance with the covenants contained in Section 5.03 of this Agreement as in effect on December 31, 2001 or (y) if available, the audited consolidated and consolidating financial statements of the Borrower and its Consolidated Subsidiaries for the fiscal year ended December 31, 2001, with a compliance certificate as described in clause (x) above.
(m) The Administrative Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed received and complied with satisfactorily reviewed the Senior Note Amendment.
(n) The Administrative Agent and the Borrower shall have received a copy of the Release and Termination Agreement, duly executed by each of the parties thereto. The Collateral Agent shall have delivered to the Administrative Agent duly executed Uniform Commercial Code termination statements, termination statements suitable for filing in the United States Trademark Office and all covenantsother documentation necessary to terminate the Liens granted to the Collateral Agent for the benefit of the Lenders and the Senior Note Holders under the February 2000 Amendment pursuant to the Existing Collateral Documents.
(o) The following statements shall be true and the Administrative Agent shall have received a certificate signed by the President or the Chief Financial Officer of the Borrower dated the date hereof, agreements stating that:
(i) After giving effect to the execution and conditions delivery of this Agreement and the Senior Note Amendment, the representations and warranties contained herein in Article IV of this Agreement and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects on and as if made on of such date date, except for such representations and warranties made as of a specified those relating to an earlier date, which shall be remain true and correct on all material respects as of such specified dates.earlier date; and
(cii) No Default or Event of Default shall have has occurred and be continuing after giving effect to is continuing, or would result from the making of the Revolving Loans to be made and any Letter of Credit to be issued on the Effective DateLoans.
(dp) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counsel.
(e) The Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required Receipt by the Security Documents or any other Loan Document or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at facility fees payable to the applicable location; or Lenders, (ii) up its administrative fee together with all other fees payable pursuant to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(kq) The All schedules, documents, certificates and other information provided to the Administrative Agent or any Lender pursuant to or in connection with this Agreement shall have received evidence, in form, scope, and substance, be reasonably satisfactory to the Agent, of Administrative Agent and its counsel in all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5)respects.
(lr) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) All legal matters incident to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date transactions contemplated hereby shall be deemed satisfactory to be a representation Cullen and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇▇, counsel to the Administrative Agent.
(iis) Receipt by the decision Administrative Agent of such Lender to execute other approvals, opinions or documents as the Administrative Agent or its counsel may reasonably request.
(t) Payment by the Borrower of the reasonable fees and deliver expenses of counsel to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderAdministrative Agent.
Appears in 1 contract
Conditions of Lending. 8.1 Conditions Precedent The obligations of the Lenders to Making make Loans hereunder are subject to the satisfaction of Revolving Loans and Issuing Letters of Credit the following conditions on the Effective Date.date of each Borrowing (each such event being called a “Credit Event”):
(a) This Agreement and the other Loan Documents The Administrative Agent shall have received a notice of such Borrowing as required by Section 2.03 (or such notice shall have been executed by deemed given in accordance with Section 2.03) together with (i) a Borrowing Base Certificate setting forth the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral Borrowing Base of the type Borrower as of a date no earlier than the end of the most recently ended calendar month and priority described in each applicable Security Documentno later than the day immediately preceding the Borrowing, or issuance and purchase, date, together with an updated schedule of Loan Receivables and (ii) an updated and current data tape containing the information required under Section 5.04(e) with respect to the Loan Receivables.
(b) All The representations and warranties made hereunder set forth in Article III and in the each other Loan Documents Document shall be true and correct in all material respects (except representations and warranties that are qualified by materiality or similar qualifiers are true and correct in all respects) on and as if of the date of such Credit Event with the same effect as though made on and as of such date date, except for to the extent such representations and warranties made as of a specified expressly relate to an earlier date, which shall be true and correct on all material respects as of such specified dates.
(c) No At the time of and immediately after such Credit Event, no Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Datecontinuing.
(d) The Agent Immediately after giving effect to such Credit Event and the Lenders use of proceeds thereof, (i) the Borrower shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, pro forma compliance with the financial covenants set forth in Section 6.09 and substance reasonably satisfactory to (ii) Aggregate Revolving Credit Exposures shall not exceed the Agent, and its counsellesser of the Borrowing Base or the Total Commitment.
(e) The Agent No Regulatory Notice Event shall have received:
occurred and be continuing or be currently threatened, except in the case of any Regulatory Notice Events for which the Administrative Agent has been notified in accordance with Section 5.05(f) and with respect to any such notified Regulatory Notice Event, the Administrative Agent has not provided notice in writing to the Borrower prior to the time of any requested Borrowing that such Regulatory Notice Event is material (it being understood that this condition (e) shall not be satisfied if the Administrative Agent provides Borrower with written notice prior to the time of such requested Borrowing that such notified Regulatory Notice Event is material), unless: (i) each document (including, without limitation, any PPSA the Administrative Agent has rescinded such written notice or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized the Regulatory Notice Event for filing by which the appropriate Person and Administrative Agent has provided such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person written notice is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinaboveno longer continuing.
(f) No Material Adverse Effect shall have occurred since September 30, 2021and be continuing.
(g) There The Borrowing date of any Loan and issuance and purchase date of any Revolving Note shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or therebyPermitted Borrowing Date.
(h) Each Since the effective date of the most recently delivered Compliance Certificate, the Borrower and the Loan Party shall Parties have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance complied with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29Loan Receivable Selection Policy.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) or reimbursed the Administrative Agent and the Lenders and Holders for all fees costs and expenses (including Attorney Costs) of required to be paid or reimbursed by them on the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Permitted Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated Date in accordance with Section 9.04 hereof. Each Credit Event shall be deemed to constitute a representation and warranty by the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect Borrower on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying Credit Event as to the matters specified in Sections 8.1(bparagraphs (b), (c), (d), (e), (f), (g) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart h) of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderArticle IV.
Appears in 1 contract
Sources: Revolving Credit Agreement (Community Choice Financial Inc.)
Conditions of Lending. 8.1 Conditions Precedent The obligations of the Lenders to Making of Revolving make Term Loans and Issuing Letters of Credit on the Effective Date.Closing Date are subject to the satisfaction of the following conditions:
(a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Date.
(d) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counsel.
(e) The Administrative Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour on behalf of the Agent, for the benefit of the Agent itself and the Lenders, a perfected Lien on written opinion of (i) White & Case LLP, counsel for Intermediate Holdings and the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instrumentsBorrower, in form and substance reasonably satisfactory to the AgentJoint Lead Arrangers and provided to the Lenders, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of White & Case LLP, counsel for Intermediate Holdings and the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited thereinBorrower, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case addressing bankruptcy non-consolidation issues in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen Joint Lead Arrangers and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal provided to the lesser Lenders, (iii) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, a Professional Association, special Delaware counsel for Intermediate Holdings and the Borrower, addressing Independent Manager provisions of the limited liability company agreements of Intermediate Holdings and the Borrower and (iiv) each local counsel listed on Schedule 4(a), substantially to the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable locationeffect set forth in Exhibit G-3, in each casecase (A) dated the Closing Date, in accordance with clause (bB) of definition of Reserves.
addressed to the Administrative Agent, the Collateral Trustee and the Lenders and (jC) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of covering such other matters relating to the Loan Documents and the transactions contemplated thereby prior to such dateTransactions as the Administrative Agent shall reasonably request, and (ii) all fees Intermediate Holdings and expenses as set forth in the Fee LetterBorrower hereby request such counsel to deliver such opinions.
(kb) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Administrative Agent shall have received (i) copies a copy of the certificate or articles of incorporation, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the Loan Documents and schedules theretostate of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer the Secretary or Assistant Secretary of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, Party dated the Effective Closing Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, by-laws of such Loan PartyParty as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it such Person is a partyparty and, in the case of the Borrower, the borrowings hereunder, and that such resolution has resolutions have not been modified, rescinded or amended and is are in full force and effect, (DC) that such Loan Party’s the certificate or articles of incorporation or other constitutive documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabovepursuant to clause (i) above, and (ED) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and (iii) a certificate of another of such Loan Party’s Officers officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Lenders or the Administrative Agent may reasonably request.
(c) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (y) and (z) of Article IV.
(d) The Administrative Agent shall have received all Administrative Agent Fees and all other costs, fees, expenses (including legal fees and expenses, title premiums, survey charges and recording taxes and fees) and other compensation contemplated by the Transactions payable to the Administrative Agent or the Joint Lead Arrangers, the Co-Manager or the Lenders to the extent due and to the extent a reasonably detailed invoice has been delivered to the Borrower at least three business days prior to the Closing Date.
(e) The Security Documents shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Closing Date. The Collateral Trustee on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document.
(f) The Collateral Trustee shall have received a Perfection Certificate with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of Intermediate Holdings and the Borrower, and shall have received the results of (i) a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property, in each case as indicated on such Perfection Certificate; and (ii) a search of the title records of the United States Patent and Trademark Office and the United States Copyright Office or agencies with respect to IP Rights indicated as registered or issued therefrom on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Trustee that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been or will be contemporaneously released or terminated.
(g) (i) Each of the Mortgages relating to each Mortgaged Property set forth on Schedule 1.01(c) shall have been duly executed by the applicable Loan Party thereto and delivered to the Collateral Trustee and shall be in full force and effect, (ii) each of such Mortgaged Properties shall not be subject to any Lien other than those permitted under Section 6.02, (iii) each of such Mortgages shall have been filed and recorded in the recording office as specified on Schedule 3.19(c) (or a lender’s title insurance policy, in form and substance acceptable to the Collateral Trustee, insuring such Mortgages as a first Lien on such Mortgaged Property, subject to any Lien permitted by Section 6.02, shall have been received by the Collateral Trustee) and, in connection therewith, the Collateral Trustee shall have received evidence satisfactory to it of each such filing and recordation and (iv) the Collateral Trustee shall have received such other documents, including a policy or policies of title insurance issued by a nationally recognized title insurance company, together with such endorsements to the extent applicable and available in the jurisdiction, and, to the extent necessary, coinsurance and reinsurance with respect to the foregoing items in this clause (iv) as may be requested by the Collateral Trustee and the Lenders to insure the Mortgages as valid first liens on the Mortgaged Properties, free of Liens other than those permitted under Section 6.02, together with such legal opinions required to be furnished pursuant to the terms of the Mortgages or as reasonably requested by the Collateral Trustee or the Lenders. In addition, the Borrower shall have delivered to Administrative Agent a completed Flood Certificate with respect to each Mortgaged Property to the extent required by the Flood Program, which Flood Certificate shall: (A) be addressed to the Administrative Agent; (B) otherwise comply with the Flood Program; (C) if the Flood Certificate states that the Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgement of receipt of written notification from the Administrative Agent and (D) if the Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable regulations promulgated under the Flood Program.
(h) The Joint Lead Arrangers shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.02 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Collateral Trustee as additional insured, in form and substance satisfactory to the Joint Lead Arrangers.
(i) [Reserved].
(j) Each Joint Lead Arranger shall have received evidence reasonably satisfactory to it that (i) all amounts outstanding under the Existing Credit Facility shall have been repaid (or will be repaid upon the receipt by the Borrower or the proceeds of the Term Loans) and all commitments in respect thereof shall have been terminated and all Liens securing (x) the Existing Credit Facility and (y) all other secured interest rate, commodity or other hedging agreements or arrangements secured by the collateral securing the Existing Credit Facility (including all Liens granted by Gen Finance (as defined in the Existing Credit Facility) and its subsidiaries) shall have been released and all guarantees in respect thereof shall be terminated and released (other than Liens permitted by Section 6.02) and (ii) Intermediate Holdings, the Borrower and the Subsidiaries shall have outstanding no Indebtedness or preferred stock other than (x) the Term Loans and (y) Indebtedness permitted by Section 6.01.
(k) The Reorganization and the other Transactions contemplated to occur on or prior to the Closing Date shall be consummated in accordance with applicable law and on the terms described in the Reorganization Documents and otherwise on terms and conditions reasonably acceptable to the Joint Lead Arrangers (without any amendment, modification or waiver thereof or any consent thereunder which is materially adverse to the Borrower, the Lenders or the Joint Lead Arrangers without the prior written consent of the Joint Lead Arrangers).
(l) The Joint Lead Arrangers shall have received copies of a report of PA Consulting Group.
(m) The Joint Lead Arrangers shall have received (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows related to the Parent and its subsidiaries for the three most recently completed fiscal years ended December 31, 2010, (ii) unaudited consolidated balance sheets and related statements of income and cash flows related to the Parent and its subsidiaries, for the fiscal quarter ended ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇) a pro forma consolidated balance sheet and related pro forma consolidated statements of income of the Parent and its subsidiaries as of, and for the twelve-month period ending on, March 31, 2011, prepared after giving effect to the Transactions and the GasCo Transactions as if the Transactions and the GasCo Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other statements of income), (iv) the projections set forth in the Private Side Supplement dated as of July 11, 2011 to the Confidential Information Memorandum reflect the forecasted financial condition of the Borrower and its Subsidiaries after giving effect to the Transactions, (v) operating information comprised of adjusted EBITDA, gross margin, operating and maintenance expenses, and capital expenditures for the Borrower and its Subsidiaries for the three fiscal years ending December 31, 2010 and each subsequent fiscal quarter ended on March 31, 2011 as provided in the Parent’s Form 8-K filed on July 11, 2011 and (vi) a statement of sources and uses of the Borrower and the Parent with respect to the Credit Facilities and the Transactions in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(n) The Joint Lead Arrangers shall have received (a) a certificate from the chief financial officer signing such certificateof the Borrower, substantially in the form of Exhibit L, certifying that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, the Reorganization and the other transactions contemplated hereby, are solvent and with supporting documentation reasonably requested by the Joint Lead Arrangers and (b) a solvency opinion for the Borrower, in form and substance reasonably satisfactory to the Joint Lead Arrangers, from Duff & ▇▇▇▇▇▇.
(o) The Joint Lead Arrangers shall be reasonably satisfied in all respects with the Tax Sharing Agreement among Parent, Intermediate Holdings and its subsidiaries after giving effect to the Transactions.
(p) The Administrative Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as a certificate of a recent date by Responsible Officer of the appropriate Borrower that all requisite Governmental Authorities of and material third parties shall have approved or consented to the provinceTransactions and the other transactions contemplated hereby to the extent material and required, state all appeal periods shall have expired and there shall be no governmental, administrative or other jurisdiction of incorporation judicial action in connection with such approval or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party consent that would reasonably be expected to own restrain, prevent or lease its property and conduct its businessimpose burdensome conditions on the Transactions.
(q) The Agent Lenders shall have received, to the extent requested at least five days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(r) The Joint Lead Arrangers shall have received a certificate from of a Responsible Officer of the BorrowersBorrower certifying that there shall not have occurred any event, dated as change or condition since December 31, 2010 (except, in the case of the Effective Date, certifying as to the matters in Sections 8.1(bParent and its subsidiaries (other than (x) GasCo and its subsidiaries and (cy) the Borrower and its subsidiaries). The acceptance by , as disclosed in writing prior July 7, 2011) that, individually or in the Borrowers of any Revolving Loans made aggregate, has had, or any Letters of Credit issued would reasonably be expected to have, a material adverse effect on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all business, assets, liabilities, operations, condition (financial or otherwise), or operating results of the conditions precedent to Parent and its subsidiaries or of the making Borrower and its Subsidiaries or of such Revolving Loans or the issuance of such Letters of Credit GasCo and its subsidiaries, in each case, taken as a whole.
(s) The Joint Lead Arrangers shall have been satisfied, with the same effect as delivery to the Agent and the Lenders of received a certificate signed by of a Responsible Officer of the Borrowers, dated Borrower certifying that (x) $1,100,000,000 term loan facilities of GasCo shall have closed and become effective contemporaneously with the Effective closing of the Credit Facilities on the Closing Date and (y) on the Closing Date, GasCo shall have received gross cash proceeds (prior to any reduction for original issue discount) of not less than $1,100,000,000 from such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that term loan facilities.
(i) all conditions precedent in this Section 8.1 have been fulfilled to Intermediate Holdings shall be a newly formed special-purpose, bankruptcy-remote Delaware limited liability company wholly owned and controlled, directly or indirectly, by the satisfaction of such L▇▇▇▇▇Parent, (ii) each of Intermediate Holdings and the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, Borrower shall have at least one Independent Manager and (iii) all documents sent each of Intermediate Holdings and the Borrower shall have customary rating agency “separateness” provisions reasonably satisfactory to such Lender the Administrative Agent in their respective limited liability company agreements.
(i) Holdings shall be a newly formed special-purpose purpose, bankruptcy remote entity wholly owned and controlled, directly or indirectly, by the Parent, (ii) Holdings shall be a corporation or limited liability company organized under the laws of Delaware and shall hold 100% of the Equity Interests of Intermediate Holdings and (iii) the Joint Lead Arrangers shall have received a letter agreement substantially in the form of Exhibit M duly executed and delivered by Holdings for approvalthe benefit of the Agents and the Lenders pursuant to which Holdings agrees to (A) have at least one Independent Manager, consent (B) maintain its books, records and financial statements separate and apart from its subsidiaries and (C) provide a statement in or satisfaction were with any financial statements it prepares and distributes that makes clear in its financial statements (in conformity with GAAP and the rules and regulations of the Securities and Exchange Commission and acceptable to it and its independent public accountants that audit its financial statements) that the assets of Intermediate Holdings and its subsidiaries are not available to the creditors of Holdings or the other Group Members (other than Intermediate Holdings and its subsidiaries) (or, alternatively, that such Lender.assets are only avai
Appears in 1 contract
Sources: Credit Agreement (Dynegy Inc.)
Conditions of Lending. 8.1 Section 4.1 Conditions Precedent to Making Lender's the Initial ------------------------------------------------- Revolving Advance. The Lender's obligation to make the initial Revolving ---------- Advance hereunder shall be subject to the condition precedent that the Lender shall have received all of Revolving Loans the following, each in form and Issuing Letters of Credit on substance satisfactory to the Effective Date.Lender:
(a) This Agreement and the other Loan Documents shall have been Agreement, properly executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security DocumentBorrower.
(b) All representations and warranties made hereunder and in The Note, properly executed by the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified datesBorrower.
(c) No Default or Event of Default shall have occurred The SBA/Eximbank Joint Application, properly completed and be continuing after giving effect to executed by the Revolving Loans to be made and any Letter of Credit to be issued on the Effective DateBorrower.
(d) The Agent and Borrower Agreement, properly executed by the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counselBorrower.
(e) The Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent A properly completed and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, executed Borrowing Base Certificate as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search date not more than five (5) Business Days before the date of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabovethis Agreement.
(f) No Material Adverse Effect shall have occurred since September 30An Exceptions Approval Letter, 2021properly signed by Eximbank.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this An Intercreditor Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or therebyexecuted by Lender and WFBC.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent An Participation and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29Servicing Agreement executed by Lender and WFBC.
(i) Each Loan Party shall have used its reasonable commercial efforts Evidence that there has been no material adverse change, as determined by Lender, in the financial condition or business of the Borrower, nor any material decline, as determined by Lender, in the market value of any Collateral or a substantial or material portion of the assets of the Borrower since the date of the latest financial statements of the Borrower delivered to obtain and deliver Lender prior to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Funding Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) Copies of the Agent incurred in connection Borrower's federal tax returns for the last year together with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letterschedules thereto.
(k) The Agent shall Current searches of appropriate filing offices showing that (i) no state or federal tax liens have received evidencebeen filed and remain in effect against the Borrower, (ii) no financing statements or assignments of patents, trademarks or copyrights have been filed and remain in formeffect against the Borrower except those financing statements and assignments of patents, scopetrademarks or copyrights relating to Permitted Liens or to liens held by Persons who have agreed in writing that upon receipt of proceeds of the Advances, they will deliver UCC releases and/or terminations and substancereleases of such assignments of patents, reasonably trademarks or copyrights satisfactory to the AgentLender, and (iii) the Lender has duly filed all financing statements necessary to perfect the Security Interest, to the extent the Security Interest is capable of all insurance coverage as required being perfected by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5)filing.
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each A certificate of the Guarantors shall have provided the documentation and other information Borrower's secretary or assistant secretary certifying as to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each the resolutions of the Loan Documents Borrower's directors and schedules theretoif required, and (ii) evidence that all consentsshareholders, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement the Loan Documents, (ii) the Borrower's certificate of incorporation and bylaws, and (iii) the other signatures of the Borrower's officers or agents authorized to execute and deliver the Loan Documents and other instruments, agreements and certificates, including Advance requests, on the Borrower's behalf.
(m) A current certificate issued by the Secretary of State of Delaware, certifying that the Borrower is in compliance with all applicable organizational requirements of the State of Delaware.
(n) Evidence from appropriate governmental officials that (i) the Borrower is duly licensed or qualified to which transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it is a partymakes such licensing or qualification necessary, and (ii) it has obtained and maintains all necessary export licenses.
(o) Certificates of the insurance required hereunder, with all hazard insurance containing a lender's loss payable endorsement in the Lender's favor and with all liability insurance naming the Lender as an additional insured.
(p) Payment of the fees and commissions due through the date of the initial Advance and expenses incurred by the Lender through such date and required to be paid by the Borrower under Sections 2.4(a), 2.4(b) and 8.2, including all legal expenses incurred through the Closing Date.
(q) All documents relating to the Domestic Credit Facility, properly executed by all parties thereto.
(r) Completion of a field review of the books and records of the Borrower and such other information with respect to the Collateral as Lender may reasonably require and a review of the Borrower's projections, budgets, business plans, cash flows and such other financial information as Lender may require, the results of all of which shall be satisfactory to Lender in its sole discretion.
(s) Evidence that such resolution there has not been modifiedno material adverse change, rescinded as determined by Lender, in the financial condition or amended and is business of the Borrower, nor any material decline, as determined by Lender, in full force and effect, (D) that such Loan Party’s certificate the market value of any Collateral or articles a substantial or material portion of incorporation or other constitutive documents have not been amended the assets of the Borrower since the date of the last amendment thereto shown on latest financial statements of the certificate of good standing furnished hereinabove, and (E) as Borrower delivered to Lender prior to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificateFunding Date.
(pt) The Agent shall have received certificates Satisfaction of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its businessany Eximbank requirements.
(qu) The Agent shall have received a certificate Approval from a Responsible Officer of Eximbank.
(v) Such other documents as the Borrowers, dated as of the Effective Date, certifying as to the matters Lender in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderits sole discretion may require.
Appears in 1 contract
Conditions of Lending. 8.1 Section 4.1 Conditions Precedent to Making the Initial Revolving Advances. ------------------------------------------------------ The Lender's obligation to make the initial Revolving hereunder shall be subject to the condition precedent that the Lender shall have received all of Revolving Loans the following, each in form and Issuing Letters of Credit on substance satisfactory to the Effective Date.Lender:
(a) This Agreement and the other Loan Documents shall have been Agreement, properly executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security DocumentBorrower.
(b) All representations and warranties made hereunder and in The Note, properly executed by the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified datesBorrower.
(c) No Default or Event A true and correct copy of Default shall have occurred any and be continuing after giving effect all leases pursuant to which the Revolving Loans Borrower is leasing the Premises, together with a landlord's disclaimer and consent with respect to be made and any Letter of Credit to be issued on the Effective Dateeach such lease.
(d) The Agent An acknowledgment and waiver of liens from each public warehouse in which the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counselBorrower is storing Inventory.
(e) The Agent shall have received:
(i) An acknowledgment and agreement from each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded licensor in order to create in favour favor of the AgentLender, for the benefit together with a true, correct and complete copy of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabovelicense agreements.
(f) No Material Adverse Effect shall have occurred since September 30The Lockbox Agreement, 2021properly executed by the Borrower, ▇▇▇▇▇ Fargo Bank and Regulus West, LLC.
(g) There shall exist no actionThe Subordination Agreement, suitproperly executed by the Guarantor, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in and acknowledged by the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or therebyBorrower.
(h) Each Loan Party shall Current searches of appropriate filing offices showing that (i) no state or federal tax liens have established Blocked Account Agreements been filed and remain in respect effect against the Borrower, (ii) no financing statements or assignments of its deposit accounts for collections patents, trademarks or copyrights have been filed and remain in effect against the Borrower except those financing statements and assignments of Accounts at a Clearing Bank reasonably acceptable patents, trademarks or copyrights relating to Permitted Liens or to liens held by Persons who have agreed in writing that upon receipt of proceeds of the Advances, they will deliver UCC releases and/or terminations and releases of such assignments of patents, trademarks or copyrights satisfactory to the Agent Lender, and shall cause (iii) the Lender has duly filed all proceeds of Accounts financing statements necessary to be deposited thereinperfect the Security Interest, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29extent the Security Interest is capable of being perfected by filing.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each A certificate of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises Borrower's Secretary or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory Assistant Secretary certifying as to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) resolutions of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such dateBorrower's directors and, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidenceif required, in formshareholders, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effectDocuments, (Dii) that such Loan Party’s certificate or the Borrower's articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinaboveand bylaws, and (Eiii) as the signatures of the Borrower's officers or agents authorized to execute and deliver the Loan Documents and other instruments, agreements and certificates, including Advance requests, on the Borrower's behalf.
(j) A current certificate issued by the Secretary of State of Minnesota, certifying that the Borrower is in compliance with all applicable organizational requirements of the State of Minnesota.
(k) Evidence that the Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary.
(l) A certificate of an officer of the Borrower confirming, in his personal capacity, the representations and warranties set forth in Article V.
(m) An opinion of counsel to the incumbency Borrower and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewiththe Guarantor, as applicable; and a certificate of another of such Loan Party’s Officers as addressed to the incumbency and signature Lender.
(n) Certificates of the officer signing such certificateinsurance required hereunder, with all hazard insurance containing a lender's loss payable endorsement in the Lender's favor and with all liability insurance naming the Lender as an additional insured.
(o) A guaranty, properly executed by the Guarantor, pursuant to which the Guarantor unconditionally guarantees the full and prompt payment of all Obligations.
(p) The Agent Evidence that the Borrower will have Availability of at least $300,000 immediately following the Advances made on the Funding Date, which Advances shall have received certificates of status, certificates of good standing, existence or its equivalent with respect be in an amount sufficient to each Loan Party certified as of a recent date by the appropriate Governmental Authorities retire all of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party Borrower's indebtedness to own or lease its property and conduct its businessCoast Business Credit.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance Receipt by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart pay-off letter from Coast Business Credit including, without limitation, acknowledgments that upon payment of this Agreement shall be deemed confirmation by such Lender that the outstanding indebtedness of the Borrower, (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction Coast Business Credit's revolving line of such L▇▇▇▇▇, credit shall be terminated and (ii) any financing statements filed against the decision Borrower for the benefit of such Coast Business Credit shall be terminated.
(r) Receipt by Lender of a pay-off letter from Finova Mezzanine Capital, Inc. including, without limitation, acknowledgments that upon payment of the outstanding indebtedness of the Borrower, (i) the credit facility provided by Finova Mezzanine Capital Inc. to execute Guarantor shall be terminated and deliver to (ii) any financing statements filed against the Agent Guarantor or the Borrower for the benefit of Finova Mezzanine Capital Inc. shall be terminated.
(s) Receipt by Lender of an executed counterpart of this Agreement was made intercreditor agreement by such Land between the Lender and ▇▇▇▇▇ independently Fargo Bank, N.A., duly executed by the parties thereto and without reliance on the Agent or any other Lender as in form and substance acceptable to the satisfaction Lender.
(t) Receipt by Lender of any condition precedent set forth a side letter executed by Equitas, L.P., in this Section 8.1, form and (iii) all documents sent to such Lender for approval, consent or satisfaction were substance acceptable to the Lender, pursuant to which Equitas, L.P. acknowledges that it has no security interest in the Borrower.
(u) Payment of the fees and commissions due through the date of the initial Advance under Section 2.3 and expenses incurred by the Lender through such Lenderdate and required to be paid by the Borrower under Section 9.6, Including all legal expenses incurred through the date of this Agreement.
(v) Such other documents as the Lender in its sole discretion may require.
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Sources: Credit and Security Agreement (Act Teleconferencing Inc)
Conditions of Lending. 8.1 Conditions Precedent The obligations of the Lenders to Making make Loans are subject to the satisfaction of Revolving Loans and Issuing Letters of Credit on the Effective Date.following conditions:
(a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the The Agent shall have received from (i) each party hereto (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence reasonably requested satisfactory to ensure that the Agent shall have (which may include a perfected security interest facsimile or other electronic imaging transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and Lien in (ii) each party to the Collateral Intercreditor Agreement (A) a counterpart of the type and priority described in each applicable Security DocumentIntercreditor Agreement signed on behalf of such party or (B) written evidence reasonably satisfactory to the Agent (which may include a facsimile or other electronic imaging transmission of a signed signature page of the Intercreditor Agreement) that such party has signed a counterpart of the Intercreditor Agreement.
(b) All The representations and warranties made hereunder set forth in Article III and in the each other Loan Documents Document shall be true and correct in all material respects on and as if of the date of the Effective Date with the same effect as though made on and as of such date date, except for to the extent such representations and warranties made as of a specified expressly relate to an earlier date, which shall be true and correct on all material respects as of such specified dates.
(c) No At the time of and immediately after the making of the Loans, no Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Datecontinuing.
(d) The Agent shall have received written opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel for Holdings and the Borrower, substantially to the effect set forth in Exhibit G, in each case (A) dated the Effective Date and (B) addressed to the Agent and the Lenders.
(e) All legal matters incidental to this Agreement, the Borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Lenders and to the Agent.
(f) The Agent shall have received such customary opinions of counsel for the Loan Parties documents and certificates as the Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Transactions and any Lender shall requestother legal matters relating to the Loan Parties, each such opinion to be the Loan Documents or the Transactions, all in a form, scope, form and substance reasonably satisfactory to the Agent, Agent and its counsel.
(eg) The Agent shall have received:received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b), (c), (i), (n), (o) and (s) of this Article.
(h) The Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(i) The Collateral and Guarantee Requirement shall have been satisfied and the Agent shall have received a completed Perfection Certificate dated the Effective Date and signed by an executive officer or Financial Officer of the Borrower, together with all attachments contemplated thereby, including the results of searches of (A) Uniform Commercial Code financing statements on file with the Secretary of State of the State of Delaware in the case of Holdings and the Borrower and with the Secretary of State of the State of New York in the case of the Parent and (B) real estate filings and Uniform Commercial Code financing statements on file with the various recording districts of the State of Alaska in which the Mortgaged Properties are situated, copies of such financing statements and real estate filings disclosed by such searches and evidence reasonably satisfactory to the Agent that the Liens indicated by such financing statements and real estate filings are permitted by Section 6.02 or have been or will be simultaneously released or terminated.
(j) Except for approvals identified in the Parent Undertaking as to be obtained after the Effective Date, the Agent shall have received evidence that the Borrower and each document applicable Subsidiary is qualified to own oil, gas and mineral leases and/or rights-of-way on Federal public lands and State lands in the State of Alaska, in accordance with all applicable laws, rules, regulations and orders of the Federal Bureau of Land Management and all applicable Governmental Authorities of the State of Alaska (includingincluding the Division of Oil and Gas with the State of Alaska Department of Natural Resources).
(k) The Agent shall have received a copy of, without limitationor a certificate as to coverage under, any PPSA or other financing statement) the insurance policies required by the Security Documents Section 5.02, each of which shall be endorsed or any other Loan Document or reasonably requested by otherwise amended to include a customary lender’s loss payable endorsement and to name the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instrumentsas additional insured, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(fl) No Material Adverse Effect The Intercompany Services Agreement, the Tax Sharing Agreements and the Parent Undertaking shall have occurred since September 30, 2021be in full force and effect in the form certified by a Responsible Officer.
(gm) There The Agent shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment have received a final version of the AgentEnvironmental and Safety Audit dated as of February 23-26, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any 2006 prepared by the Parent and the related Status Report dated as of the other Loan Documents or any of the transactions contemplated hereby or therebyJune 8, 2006.
(hn) Each Loan Party The Hedging Agreements set forth on Schedule 1.01(a) shall be in full force and effect and shall have established Blocked Account Agreements the effect of establishing minimum fixed prices or floors on a notional volume of crude oil and natural gas, calculated separately, equal to approximately 75% of Anticipated Production thereof that is not subject to fixed price contracts for each month in respect the period through and including the third anniversary of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable the Effective Date.
(o) Immediately after giving effect to the Agent and shall cause all proceeds of Accounts Transactions to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered occur on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29Holdings, the Borrower and the Subsidiaries shall have outstanding no Indebtedness or preferred Equity Interests other than (a) Indebtedness outstanding under this Agreement, (b) Indebtedness outstanding under the Second Lien Credit Agreement, (c) Indebtedness set forth on Schedule 6.01 and (d) Hedging Agreements set forth on Schedule 1.01.
(ip) Each Loan Party The Lenders shall have used received the financial statements referred to in Section 3.05, none of which shall demonstrate a material adverse change in the financial condition of Holdings and its reasonable commercial efforts to obtain subsidiaries from (and deliver shall not otherwise be materially inconsistent with) the financial statements or forecasts previously provided to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of Lenders in the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of ReservesConfidential Information Memorandum.
(jq) The Loan Parties Lenders shall have paid (i) all fees and expenses (including Attorney Costs) of received the Agent incurred Reserve Report referred to in connection with any of the Loan Documents and the transactions contemplated thereby prior to such dateSection 3.05, and (ii) all fees and expenses as set forth in such Reserve Report shall not be materially inconsistent with the Fee Letterversions thereof previously provided to the Lenders.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(or) The Agent shall have received a solvency certificate of an Responsible from a Financial Officer of each Holdings, substantially in the form set forth on Exhibit H, confirming the solvency of Holdings and its subsidiaries on a consolidated basis after giving the Transactions to occur on the Effective Date.
(s) Except for approvals identified in the Parent Undertaking as to be obtained after the Effective Date, all material requisite Governmental Authorities and third parties shall have approved or consented to the transfer of the Loan PartiesBusiness to the Borrower and the Subsidiaries, the Transactions and the other transactions contemplated hereby to the extent required, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that could reasonably be expected to restrain, prevent or impose burdensome conditions on behalf the Transactions or the other transactions contemplated hereby.
(t) The Lenders shall have received, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. The making of the Loan Parties Loans shall be deemed to constitute a representation and not in any personal capacity warranty by Holdings and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect Borrower on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying their making as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent specified in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderArticle.
Appears in 1 contract
Conditions of Lending. 8.1 Conditions Precedent The obligation of the Bank to Making of Revolving Loans and Issuing make the Term Loan, advance funds pursuant to the Credit Line or to issue Letters of Credit on is subject to the Effective Date.following conditions precedent, which together may be called the Conditions of Lending:
(a) This Agreement and 10.1 That the other Loan Documents shall have been executed by the Borrowersstatements, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made hereunder of the Borrower contained herein are and continue to be true in the all material respects, other Loan Documents shall be than representations and warranties which expressly pertain to a specific date and which are no longer true and correct in all material respects as if made on due to determination of such date except for such representations representation and warranties made warranty as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c) No or for another date or period; that no Default or Event of Default shall have has occurred and be continuing after giving effect to the Revolving Loans to be made is continuing; and any that each request for an Advance or for issuance of a Letter of Credit shall constitute and be deemed to be issued on the Effective Date.
(d) The Agent a representation and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory warranty to the Agent, Bank as to the accuracy and its counsel.
(e) The Agent shall have received:
(i) completeness in all material respects of each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit foregoing set forth in this Section 10.1 as of the Agent date of such request and that upon the Lendersrequest of the Bank, the Borrower shall deliver to the Bank a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instrumentscertificate, in form and substance reasonably satisfactory to Bank, certifying as to the Agent, as shall be necessary to terminate and satisfy all Liens foregoing on the assets and property date of each Advance or issuance of a Letter of Credit.
10.2 The Borrower shall have delivered to the Bank, at the time of the Loan Partiesexecution of this Agreement, except Permitted Liens; anda duly authorized and executed Revolving Note and Term Note.
(iii) 10.3 Borrower shall have delivered to the results of a search of tax and other LiensBank, and judgments and at the time of the PPSA filingsexecution of this Agreement, Canadian Intellectual Property Office filings a duly authorized and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable executed Security Agreement and a security interest or Lien on the Collateral or any part thereof made with respect to duly authorized and executed Pledge Agreement, each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the AgentBank, duly executed bytogether with such documents as the Bank may reasonably require to perfect the security interest in any Collateral.
10.4 The Bank shall have received simultaneously with the execution hereof: (a) an opinion of counsel for Borrower, as appropriate, such landlords, warehousemen in form and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal substance satisfactory to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory Bank and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, certified copies of all insurance coverage as required corporate actions taken by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) Borrower to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing authorize the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a partyDocuments, and that such resolution has not been modified, rescinded or amended and is its obligations in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents connection herewith.
10.5 The Guarantors shall have not been amended since each delivered to the date Bank a Guaranty of the last amendment thereto shown on the certificate of good standing furnished hereinaboveObligations, each in form and (E) as substance satisfactory to the incumbency and specimen signature Bank, together with the Security Agreement of each of such Loan Party’s officers executing this Agreement or any other Loan Document the respective Guarantor.
10.6 The Borrower shall have delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature Bank at the time of the officer signing execution hereof, or at such certificate.
(p) The Agent other times as shall have received certificates of statusbe reasonably requested by Bank, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or such other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as documents relating to the matters Credit Line as the Bank may reasonably require, all in Sections 8.1(b) form and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers substance satisfactory to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderBank.
Appears in 1 contract
Conditions of Lending. 8.1 Conditions Precedent The obligation of each Lender to Making of Revolving Loans and Issuing Letters of Credit make advances to the Borrowers on the Effective Date.Closing Date is subject to the satisfaction or waiver in accordance with Section 9.08 of the following conditions precedent:
(a) This Agreement and Each of the other Loan Documents shall have been executed by and other documentation relating to the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Term Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made provided hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Date.
(d) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counsel.
(e) The Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate Administrative Agent and satisfy all Liens on the assets duly executed and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to delivered by each of the Loan Parties and other parties thereto.
(b) Administrative Agent shall have received, in the jurisdictions in which respect of each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in Loan Party,
(i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment notes payable to the order of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable Lenders to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or extent requested at least three Business Days prior to the Effective Date, then such items may be delivered Closing Date in accordance with Section 7.29.2.04(e);
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each organizational or constitutive document (along with any amendments thereto) certified as of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required Closing Date or a recent date prior thereto by Requirements of Law in connection therewith have been obtained and made.the appropriate Governmental Authority;
(oiii) The Agent shall have received a certificate of the secretary or an Responsible Officer assistant secretary of each Loan Party certifying the names and true signatures of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, officers of such Loan Party, Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder;
(Biv) that attached thereto is a true and complete copy resolutions of the board of directors (or similar governing body) of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate Party approving and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a partyparty or by which it or its assets may be bound as of the Closing Date, and that such resolution has not been modified, rescinded certified as of the Closing Date by its secretary or amended and is an assistant secretary as being in full force and effect, effect without modification or amendment; and
(Dv) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of a good standing furnished hereinabove, and (E) as to certificate from the incumbency and specimen signature of each applicable Governmental Authority of such Loan Party’s officers executing this Agreement jurisdiction of incorporation, organization or any other Loan Document delivered in connection herewith formation dated the Closing Date or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificaterecent date prior thereto.
(pc) All reasonable and documented out-of-pocket fees and expenses (including reasonable and documented fees and expenses of outside counsel) required to be paid to the Administrative Agent on or before the Closing Date shall have been paid (including fees owed to the Lenders to be paid to the Administrative Agent for the accounts of the Lenders), to the extent invoiced at least three Business Days prior to the Closing Date.
(d) The Administrative Agent and Lenders and their respective counsel shall have received certificates originally executed copies of statusa favorable written opinion of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, certificates of good standing▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, existence or its equivalent with respect to each counsel for the Loan Party certified Parties, dated as of a recent date by the appropriate Governmental Authorities of Closing Date, addressing such matters as the province, state or other jurisdiction of incorporation or organization of such Loan Party Administrative Agent may reasonably request in form and in each other jurisdiction in which qualification is necessary in order for such Loan Party substance reasonably satisfactory to own or lease its property and conduct its businessthe Administrative Agent.
(qe) The Administrative Agent shall have received a certificate from the chief financial officer of Holdings substantially in the form of Exhibit I.
(f) The Administrative Agent shall have received a Responsible completed Perfection Certificate, dated as of the Closing Date and signed by a Financial Officer of the Borrowers, dated as together with all attachments contemplated thereby.
(g) Since the date of the Effective Date, certifying as to Asset Purchase Agreement until the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all consummation of the conditions precedent Specified Acquisition, there shall not have occurred any event, change, circumstance or effect that, individually or in the aggregate, has resulted in or would reasonably be expected to result in a Specified Material Adverse Effect. A “Specified Material Adverse Effect” means any event, change, circumstance or effect that, individually or in the making aggregate, materially and adversely affects the business, operations, assets, Liabilities (as defined in the Asset Purchase Agreement) (including contingent Liabilities), results of such Revolving Loans operations or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer financial condition of the BorrowersBusiness (as defined in the Asset Purchase Agreement), dated taken as a whole; provided, however, that none of the Effective Datefollowing, to such effecteither alone or in combination, except to the extent waived will constitute, or postponed be considered in writing by the Agent. Execution and delivery to the Agent by determining whether there has been, a Lender Specified Material Adverse Effect: any event change, circumstance or effect resulting from or arising out of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction any outbreak or escalation of such L▇▇▇▇▇war, civil unrest, or major hostilities or any act of terrorism; (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent any earthquake, hurricane, storm, flood or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and natural disaster; (iii) all documents sent changes or developments in applicable law, statute, constitution, ordinance, code, regulation, rule, treaty or other requirement of any governmental authority, United States generally accepted accounting principles or enforcement or interpretation thereof arising after the date hereof; (iv) effects or changes that are generally applicable to the industry in which the Business operates; (v) changes in financial markets, general economic conditions (including prevailing interest rates, exchange rates, commodity prices and fuel costs) or political conditions; (vi) any failure, in and of itself, of the Business to meet any published or internally prepared projections, budgets, plans or forecasts of revenues, earnings or other financial performance measures or operating statistics (it being understood that the facts or circumstances underlying any such Lender for approvalfailure that are not otherwise excluded from the definition of a “Specified Material Adverse Effect” may be considered in determining whether there has been a Specified Material Adverse Effect); (vii) any action taken or failed to be taken at the written request of, or consented to in writing by, HMCo (with the written consent or satisfaction were acceptable to such Lender.of the Arrangers); or
Appears in 1 contract
Sources: Term Loan Credit Agreement (Houghton Mifflin Harcourt Co)
Conditions of Lending. 8.1 Conditions Precedent to Making of Revolving Loans and Issuing Letters of Credit on the Effective Date.
(a) This Agreement and The obligation of Bank to make the other Loan Documents shall have been executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required initial loan hereunder or issuing or causing to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and issued any Letter of Credit hereunder shall be subject to be issued on the Effective Date.
(d) The Agent and the Lenders condition precedent that Bank shall have received such customary opinions all of counsel for the Loan Parties as the Agent or any Lender shall requestfollowing, each such opinion to be in a form, scope, form and substance reasonably satisfactory to the Agent, and its counsel.
(e) The Agent shall have receivedBank:
(i) each document (includingThis Agreement, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour properly executed on behalf of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;Borrower.
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory The Note drawn to the Agent, as shall be necessary to terminate and satisfy all Liens on order of Bank in the assets and property face amount of the Loan Parties, except Permitted Liens; andCredit Limit.
(iii) a Mortgage, Security Agreement and Assignment from the results Borrower granting a third mortgage, assignment of a search leases and rents, contracts and permits on the property located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, subject only to the existing first and second liens in favor of tax Bank of New Hampshire and other Liens, associated mortgage documents.
(iv) A true and judgments correct copy of any and of the PPSA filings, Canadian Intellectual Property Office filings and filings made all leases pursuant to other Requirement of Law or statutes to perfect or render opposable which Borrower is leasing any real property, together with a security interest or Lien on the Collateral or any part thereof made landlord's consent and waiver with respect to each such real property. If Borrower is unable to obtain a landlord's consent and waiver for any real property prior to closing then the Borrower shall use all reasonable efforts to obtain same after the closing of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinaboveLoan.
(fv) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment Current searches of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, appropriate filing offices showing that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true no state or federal tax liens have been filed and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, remain in each case amended to date, of such Loan Partyeffect against Borrower, (B) that attached thereto is a true no financing statements have been filed and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as remain in effect against Borrower, except those financing statements relating to liens set forth on Schedule "B", the date of such certificate and at all times since a date prior to the date liens of the resolution described in item secured lender to be paid with the proceeds of the initial loan and those financing statements filed by the Bank, and (C) belowthe Bank has duly filed all financing statements necessary to perfect the security interests granted hereunder, to the extent the security interests are capable of being perfected by filing.
(Cvi) that attached thereto is a true and complete copy A certificate of a resolution adopted by such Loan Party’s Board the Secretary or an Assistant Secretary of Directors the Borrower, certifying as to (or in A) the case resolutions of a Loan Party that is not a corporationthe directors and, if required, the equivalent governing body) shareholders of Borrower, authorizing the execution, delivery and performance of this Agreement and related documents, (B) the other Loan Documents to which it is a partyCertificate of Incorporation and By-Laws of Borrower, and (C) the signatures of the officers or agents of Borrower authorized to execute and deliver this Agreement and other instruments, agreements and certificates, including loan requests, on behalf of Borrower.
(vii) A current certificate issued by the Secretary of State of the state of the Borrower's incorporation, certifying that such resolution has not been modified, rescinded or amended and Borrower is in full force and effectcompliance with all corporate organizational requirements of such state.
(viii) Evidence that Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary.
(ix) An opinion of counsel to the Borrower, addressed to Bank.
(Dx) that such Loan Party’s certificate or articles Certificates of incorporation or other constitutive documents have not been amended since the insurance required hereunder, with all hazard insurance containing a lender's loss payable endorsement in favor of Bank.
(xi) Intentionally Deleted.
(xii) Payment of the fees due through the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, initial loan and (E) as expenses incurred by Bank through such date required to be paid by Borrower pursuant to this Agreement for which invoices have previously been delivered to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificateBorrower.
(pxiii) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect A Borrowing Base Certificate (including an accounts receivable aging) which indicates that the Borrower has the necessary loan availability to each Loan Party certified pay all existing secured lenders which are to be paid as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its businessdate.
(qxiv) A Covenant Compliance Certificate in the form of Exhibit 2 indicating that the Borrower is in compliance with this Agreement.
(xv) Receipt and satisfactory review by Bank of management prepared balance sheet of Borrower for period ending August 31, 2001.
(xvi) Receipt and satisfactory review by the Bank of an appraisal of the Borrower's Inventory.
(xvii) Receipt of the origination and commitment fee.
(xviii) Such other documents, instruments and agreements as Bank may reasonably request.
(b) The Agent obligation of Bank to make each loan shall have received a certificate from a Responsible Officer of be subject to the Borrowers, dated further conditions precedent on such date:
(i) the representations and warranties contained in Sections 3 and 4 hereof are correct in all material respects on and as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making date of such Revolving Loans loan or the issuance of a Letter of Credit, as the case may be, as though made on and as of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effectdate, except to the extent waived or postponed in writing by the Agent. Execution that such representations and delivery warranties relate solely to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, an earlier date; and
(ii) the decision no event has occurred and is continuing, or would result from such loan or issuance of such Lender to execute and deliver to Letter of Credit, as the Agent case may be, which constitutes an executed counterpart Event of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on Default or which, with notice or the Agent passage of time or any other Lender as to the satisfaction both, would constitute an Event of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderDefault.
Appears in 1 contract
Sources: Loan and Security Agreement (Seachange International Inc)
Conditions of Lending. 8.1 Conditions Precedent to Making of Loans on the Closing Date. The obligation of the Lenders to make the initial Revolving Loans and Issuing Letters the Term Loans on the Closing Date, and the obligation of the Agent to cause the Letter of Credit Issuer to issue any Letter of Credit on the Effective Closing Date., is subject to the following conditions precedent having been satisfied in a manner satisfactory to the Agent and each Lender:
(a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent each party thereto and the Lenders party hereto on the Effective Date and each Loan Party Obligors shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party the Obligors before or on the Effective such Closing Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) Upon making the initial Revolving Loans and the Term Loans (including (i) such Loans made to finance, or otherwise as reimbursement for, all fees, costs and expenses then payable under this Agreement and the other Loan Documents and (ii) such Loans (or a Reserve) made to finance the portion of the Redemption Price for which the Borrowers do not have readily available cash or Cash Equivalents as of the Closing Date) and with all its obligations current, the Borrowers shall have Excess Availability of at least $30,000,000.
(c) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(cd) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter the Letters of Credit to be issued on the Effective Closing Date.
(de) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties Obligors and their Subsidiaries as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and its their respective counsel.
(ef) The Agent shall have received:
(i) each document (includingacknowledgment copies of proper financing statements, without limitation, any PPSA duly filed on or other financing statement) required by before the Security Documents or any other Loan Document or reasonably requested by Closing Date under the UCC in all jurisdictions that the Agent to be filed, registered may deem necessary or recorded desirable in order to create in favour of perfect the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted ’s Liens), and in proper form for filing, registration or recordation;; and
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person duly executed UCC-3 Termination Statements and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, Obligors and their Subsidiaries except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties Borrowers shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letterextent invoiced.
(kh) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement Agreement.
(includingi) The Agent and the Lenders shall have had an opportunity, if they so choose, to examine the books of account and other records and files of the Obligors and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and the certificates Borrowing Base, and the results of insurance such examination and other documents required by Section 7.5)audit shall have been satisfactory to the Agent and the Lenders in all respects.
(lj) The Borrowers Agent shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent received, in form and scope substance reasonably satisfactory to it, an appraisal of the AgentEligible Equipment.
(mk) The Borrowers and each Concurrently with the making of such Loans, Caraustar shall issue the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated Redemption Notice in accordance with the terms of the Senior Subordinated Note Indenture.
(l) The Agent and the Lenders shall have received the audited financial statements of the Borrowers and their Subsidiaries as of December 31, 2005, together with an unqualified opinion of the Borrowers’ independent certified public accountants with respect thereto, and the results of operations and financial condition evidenced by such financial statements shall be satisfactory to the Agent and the Lenders.
(m) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrowers, threatened against any Obligor in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.
(n) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in compliance with all material applicable Requirements of Lawform, on terms reasonably acceptable scope, and substance to the Agent. The Agent shall have received (i) copies of each of and the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and madeLenders.
(o) The Agent Without limiting the generality of the items described above, the Borrowers and each other Obligor shall have received a certificate of an Responsible Officer of each of delivered or caused to be delivered to the Loan PartiesAgent (in form and substance reasonably satisfactory to the Agent), on behalf of the Loan Parties and not in any personal capacity and without personal liabilityfinancial statements, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational instruments, resolutions, documents, in each case amended to dateagreements, of such Loan Partycertificates, (B) that attached thereto is a true opinions and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect other items set forth on the date of such certificate and at all times since a date “Closing Checklist” delivered by the Agent (or its counsel) to Caraustar (or its counsel) prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers any Borrower of any Revolving Loans made or any Letters of Credit issued on the Effective Closing Date shall be deemed to be a representation and warranty made by the Borrowers Obligors to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the BorrowersOfficer, dated the Effective Closing Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approvalapproval consent, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Conditions of Lending. 8.1 Conditions Precedent The obligation of each Lender to Making of Revolving Loans and Issuing Letters of Credit make advances to the Borrowers on the Effective Date.Closing Date is subject to the satisfaction or waiver in accordance with Section 9.08 of the following conditions precedent:
(a) This Agreement and Each of the other Loan Documents shall have been executed by and other documentation relating to the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Term Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made provided hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Date.
(d) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counsel.
(e) The Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate Administrative Agent and satisfy all Liens on the assets duly executed and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to delivered by each of the Loan Parties and other parties thereto.
(b) Administrative Agent shall have received, in the jurisdictions in which respect of each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in Loan Party,
(i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment notes payable to the order of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable Lenders to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or extent requested at least three Business Days prior to the Effective Date, then such items may be delivered Closing Date in accordance with Section 7.29.2.04(e);
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each organizational or constitutive document (along with any amendments thereto) certified as of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required Closing Date or a recent date prior thereto by Requirements of Law in connection therewith have been obtained and made.the appropriate Governmental Authority;
(oiii) The Agent shall have received a certificate of the secretary or an Responsible Officer assistant secretary of each Loan Party certifying the names and true signatures of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, officers of such Loan Party, Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder;
(Biv) that attached thereto is a true and complete copy resolutions of the board of directors (or similar governing body) of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate Party approving and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a partyparty or by which it or its assets may be bound as of the Closing Date, and that such resolution has not been modified, rescinded certified as of the Closing Date by its secretary or amended and is an assistant secretary as being in full force and effect, effect without modification or amendment; and
(Dv) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of a good standing furnished hereinabove, and (E) as to certificate from the incumbency and specimen signature of each applicable Governmental Authority of such Loan Party’s officers executing this Agreement jurisdiction of incorporation, organization or any other Loan Document delivered in connection herewith formation dated the Closing Date or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificaterecent date prior thereto.
(pc) All reasonable and documented out-of-pocket fees and expenses (including reasonable and documented fees and expenses of outside counsel) required to be paid to the Administrative Agent on or before the Closing Date shall have been paid (including fees owed to the Lenders to be paid to the Administrative Agent for the accounts of the Lenders), to the extent invoiced at least three Business Days prior to the Closing Date.
(d) The Administrative Agent and Lenders and their respective counsel shall have received certificates originally executed copies of statusa favorable written opinion of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, certificates of good standingcounsel for the Loan Parties and (ii) local counsel for the Loan Parties in states in which the Loan Parties are organized or formed, existence or its equivalent with respect to in each Loan Party certified case, dated as of a recent date by the appropriate Governmental Authorities of Closing Date, addressing such matters as the province, state or other jurisdiction of incorporation or organization of such Loan Party Administrative Agent may reasonably request in form and in each other jurisdiction in which qualification is necessary in order for such Loan Party substance reasonably satisfactory to own or lease its property and conduct its businessthe Administrative Agent.
(qe) The Administrative Agent shall have received a certificate from the chief financial officer of Holdings substantially in the form of Exhibit I.
(f) The Administrative Agent shall have received a Responsible completed Perfection Certificate, dated as of the Closing Date and signed by a Financial Officer of the Borrowers, dated together with all attachments contemplated thereby.
(g) Since December 31, 2018 there has been no event or occurrence that has had a Material Adverse Effect.
(A) Each Lender shall have received at least one Business Day prior to the Closing Date all documentation and other information reasonably requested in writing by them at least three Business Days prior to the Closing Date in order to allow the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act and (B) to the extent any Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three Business Days prior to the Closing Date, any Lender that has requested, in a written notice to Holdings at least five Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to such Loan Party, shall have received such Beneficial Ownership Certification.
(A) The amendment and extension of the Effective Maturity Date (as defined in the Existing Revolving Credit Agreement) of the Existing Revolving Credit Agreement shall have occurred or shall be consummated substantially concurrently with the Closing Date and (B) the Closing Date (as defined in the Revolving Credit Agreement) under the Revolving Credit Agreement shall have occurred or will occur substantially concurrently with the Closing Date and the Loan Documents (as defined in the Revolving Credit Agreement) required by the terms of the Revolving Credit Agreement shall have been, or substantially concurrently with the Closing Date shall be, executed and delivered;
(j) The Senior Notes shall have been issued, or substantially concurrently with the Closing Date;
(k) The ABL Intercreditor Agreement, certifying as the Pari Passu Intercreditor Agreement, the Guarantee and Collateral Agreement and each other Security Document shall have been duly executed and delivered by each of the applicable Loan Parties, in each case, in form and substance reasonably satisfactory to the matters Administrative Agent and together therewith, the Administrative Agent shall have received the following, in Sections 8.1(bform and substance reasonably satisfactory to the Administrative Agent:
(i) Proper uniform commercial code financing statements for all applicable jurisdictions of the Loan Parties as deemed necessary by the Administrative Agent in order to perfect and protect the Liens and security interests created or purported to be created pursuant to the Security Documents covering the Collateral;
(ii) Copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties;
(iii) for each Mortgaged Property specified on Schedule 1.01(a):
(A) the Flood Insurance Documents;
(B) mortgage amendments, supplements or restatements of the existing Mortgages, in each case, made for the purpose of providing that such Mortgages will secure the Obligations and in form and substance reasonably satisfactory to the Administrative Agent (the “Mortgage Amendments”) that have been duly executed, acknowledged and delivered by a duly authorized officer of the appropriate Loan Party and are in form suitable for filing and recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable, together with fully paid date-down and modification endorsements to the Mortgage Policies issued in connection with each existing Mortgage or, where such date-down or modification endorsements are not available to insure any such Mortgage, a new title insurance policy with respect to the applicable Mortgage, as previously amended and as amended (or amended and restated) by such Mortgage Amendment (or, in each case, a commitment to issue such endorsements or new policy having the effect of such policy so endorsed or such a new policy, as the case may be), each issued by a title insurer reasonably acceptable to the Administrative Agent and each in form and substance reasonably satisfactory to the Administrative Agent which insures that such Mortgage, as previously amended and as amended (or amended and restated) by the applicable Mortgage Amendment, continues to create a valid first Lien on the applicable Mortgaged Property described therein, subject only to Liens permitted under the Loan Documents; and
(iv) evidence of all insurance required to be maintained pursuant to Section 5.02, and evidence that the Administrative Agent shall have been named as an additional insured or loss payee, as applicable, on all insurance policies covering loss or damage to Collateral; and
(v) evidence that such other documents, instruments or actions deemed necessary or advisable by the Administrative Agent to perfect and protect the Liens and security interests (and the first priority thereof with respect to Term Facility First Lien Collateral and, if applicable, the second priority thereof with respect to Revolving Facility First Lien Collateral) created or purported to be created pursuant to the Guarantee and Collateral Agreement shall have been duly delivered or completed, including, without limitation, the delivery of Uniform Commercial Code financing statements in proper form for filing for all applicable jurisdictions of the Loan Parties and provision having been made for the payment of any fees or taxes required in connection with the filing of such documents, instruments or financing statements; provided, however, that, each of the requirements set forth above, (except for the (I) execution and delivery of the Guarantee and Collateral Agreement, (II) delivery of the evidence and documents referred to in clause (iii)(A) above, and (c). The acceptance III) to the extent that a Lien on such Collateral may be perfected (x) by the Borrowers filing of any Revolving Loans made a financing statement under the Uniform Credit Code or any Letters of Credit issued on customary “short form” intellectual property filings with the Effective Date shall be deemed to be a representation United States Patent and warranty made Trademark Office or the United States Copyright Office or (y) by the Borrowers to the effect that all delivery of stock certificates of the Borrowers) shall not constitute conditions precedent to the making Borrowing on the Closing Date after the Borrowers’ use of commercially reasonable efforts to provide such Revolving Loans items on prior to the Closing Date if the Borrowers agree to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the issuance Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion).
(l) The Administrative Agent shall have received a notice of such Letters of Credit have been satisfied, Borrowing in accordance with the same requirements hereof.
(m) On the Closing Date, after giving effect as delivery to the Agent and the Lenders Transactions, none of a certificate signed by a Responsible Officer Holdings or any of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement its Subsidiaries shall be deemed confirmation by such Lender that have any third party Indebtedness for borrowed money other than (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇Term Loan Facility, (ii) the decision facilities provided under the Revolving Credit Agreement, (iii) the Senior Notes and (iv) other Indebtedness permitted by Section 6.01. The making of the initial advance to the Borrowers on the Closing Date by the applicable Lenders hereunder shall conclusively be deemed to constitute an acknowledgement by the Administrative Agent and each such Lender to execute and deliver to that each of the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition conditions precedent set forth in this Section 8.1, and (iii) all documents sent to Article IV shall have been satisfied in accordance with its respective terms or shall have been irrevocably waived by such Lender for approval, consent or satisfaction were acceptable to such LenderPerson.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Houghton Mifflin Harcourt Co)
Conditions of Lending. 8.1 Conditions Precedent to Making of Loans on the Initial Funding -------------------------------------------------------------- Date. The obligation of the Lenders to make the initial Revolving Loans Loans, and Issuing Letters ---- the obligation of the Agent to cause the Letter of Credit Issuer to issue any Letter of Credit on the Effective Initial Funding Date., are subject to the following conditions precedent having been satisfied in a manner satisfactory to the Agent and each Lender:
(a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent each party thereto and the Lenders party hereto on the Effective Date and each Loan Party Parties shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party them before or on the Effective such Closing Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) Upon making the Revolving Loans (including such Revolving Loans made to finance the Agent's Fees due on such date or otherwise as reimbursement for fees, costs and expenses then payable under this Agreement) and with all obligations of the Borrowers and their Subsidiaries current, the Borrowers shall have Availability of at least $75,000,000.
(c) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(cd) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter the Letters of Credit to be issued on the Effective Initial Funding Date.
(de) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties Parent and its Subsidiaries (including local counsel) as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and its their respective counsel.
(ef) The Agent shall have received:
(i) each document (includingacknowledgment copies of proper financing statements, without limitation, any PPSA duly filed on or other financing statement) required by before the Security Documents or any other Loan Document or reasonably requested by Closing Date under the UCC of all jurisdictions that the Agent to be filed, registered may deem necessary or recorded desirable in order to create in favour of perfect the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted 's Liens), and in proper form for filing, registration or recordation;; and
(ii) estoppel documentation, PPSA authorization for Agent to file or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person record UCC-3 Termination Statements and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets Property of Parent and property of the Loan Parties, its Subsidiaries except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party The Borrowers shall have established Blocked Account Agreements in respect paid all fees (including Agent's Fees due on such date) and expenses of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letterextent invoiced.
(kh) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement Agreement.
(includingi) The Agent shall have had an opportunity, if it so chooses, to examine the books of account and other records and files of Parent and its Subsidiaries and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Borrowers' Inventory, Accounts, Fixed Assets and the certificates Borrowing Base, and the results of insurance such examination and other documents required audit shall have been satisfactory to the Agent and the Lenders in all respects.
(j) Agent's receipt of appraisals of Inventory and Fixed Assets of the Borrowers in form and substance, and performed by Section 7.5)appraisal firms, satisfactory to Agent.
(k) The Commitments shall have been successfully syndicated on the terms set forth herein, to the satisfaction of Agent, and all Lenders shall ratably fund the Loans on the Initial Funding Date.
(l) The Borrowers All proceedings taken in connection with the execution of this Agreement, any Notes, all other Loan Documents and all documents and papers relating thereto shall have delivered a Borrowing Base Certificate (be satisfactory in form, scope, and supporting information) substance to the Agent in form and scope satisfactory to the AgentLenders.
(m) The Borrowers and each Without limiting the generality of the Guarantors items described above, each Loan Party shall have provided the documentation and other information delivered or caused to be delivered to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules Agent (in form and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms substance reasonably acceptable satisfactory to the Agent. The Agent shall have received (i) copies of each of ), the Loan Documents and schedules theretofinancial statements, and (ii) evidence that all consentsinstruments, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Partiesresolutions, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to dateagreements, of such Loan Partycertificates, (B) that attached thereto is a true opinions and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect other items set forth on the date of such certificate "Closing Checklist" delivered by the Agent to Parent and at all times since a date each Borrower prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Closing Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers any Borrower of any Revolving Loans made or any Letters of Credit issued on the Effective Initial Funding Date shall be deemed to be a representation and warranty made by Parent and the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit set forth in clauses (a), (b), (c), (d), ----------- --- --- --- (g) and (m) of this Section 8.1 have been satisfied, with the same effect as --- --- ----------- delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowerseach Borrower, dated the Effective Initial Funding Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been ----------- fulfilled or waived to the satisfaction of such L▇▇▇▇▇Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to ----------- such Lender for approvalapproval consent, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Credit Agreement (Mail Well Inc)
Conditions of Lending. 8.1 Conditions Precedent The obligations of Lender to Making make a Loan is subject to the fulfillment of Revolving Loans and Issuing Letters of Credit on the Effective Date.following conditions:
(a) This Agreement and the other Loan Documents 3.1. The following documents shall have been duly authorized, executed and delivered by the BorrowersBorrower to the Lender, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Date.
(d) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counsel.
(e) The Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as Lender and its counsel and shall be necessary to terminate in full force and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior the Loan. Prior to the date first Loan:
(a) an executed Loan Agreement, and all executed documents, certificates and instruments contemplated by this Loan Agreement, including but not limited to the Security Agreement;
(b) a certified copy of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s the Board of Directors (of Borrower, certified by the Secretary or in the case of a Loan Party that is not a corporationresponsible officer thereof, the equivalent governing body) duly authorizing the execution, delivery and performance of this Loan Agreement and the Note contemplated hereby;
(c) a certificate of recent date from the Secretary of State of the state of incorporation of Borrower as to its good standing;
(d) an incumbency certificate of Borrower dated as of the date of funding, as to (i) the person or persons authorized to execute and deliver this Loan Agreement, the Note, the Security Agreement, and any other Loan Documents documents to which it is be executed on behalf of them in connection with the transactions contemplated hereby and (ii) the signature of each person or persons;
(e) the executed Note;
(f) documentary evidence satisfactory to Lender that any and all liens or other security interests on any of Borrower's tangible or intangible property, including but not limited to accounts, computer hardware and software, copyrights, equipment, inventory, licenses, patents, trade secrets, trademarks, general intangibles, chattel paper or other property, and all proceeds thereof, shall have been released or otherwise subordinated to Lender's security interests contemplated herein, except as otherwise provided by that certain agreement by and among ProFutures Bridge Capital Fund, L.P., a partyDelaware limited partnership ("ProFutures"), Lender and Borrower, dated as of April 28, 1998 and attached hereto as Exhibit D, and except as provided by that certain agreement by and among Uro-Tech, Ltd., Lender and Borrower, dated as of April 28, 1998 and attached hereto as Exhibit E; and
(g) an expense plan and budget, including an acceptable cash control system for managing expenditures within the plan and budget, ("Expense Plan"), attached hereto as Schedule 3.1(g) ; and
(h) documentary evidence satisfactory to Lender that any Letter of Intent or contract arrangements of whatever nature between Borrower and CTI PET Systems, Inc. have expired or otherwise been terminated, and that there are no obligations of whatever nature in effect between Borrower and CTI PET Systems, Inc. For each Loan (including the first):
(i) an officer's certificate in the form of Exhibit B which shall include the written request from Borrower setting forth the requested amount of the Loan and the proposed date of borrowing;
(j) for each Loan after the first Loan, documentary evidence satisfactory to Lender, including but not limited to Exhibit B, that Borrower is adhering strictly to the Expense Plan; and
(k) such resolution other documents and evidence with respect to Borrower as Lender may reasonably request.
3.2. On the date of each borrowing pursuant to Section 2.1 above, (i) no Default or event that with the giving of notice or lapse of time or both would constitute a Default hereunder has not been modified, rescinded or amended occurred and is in full force and effectcontinuing or would result from the performance of this Loan Agreement, (Dii) that such Loan Party’s certificate or articles of incorporation or other constitutive documents no material adverse change shall have not been amended occurred since the date of this Loan Agreement in the last amendment thereto shown on financial condition or operations of the certificate of good standing furnished hereinaboveBorrower, and (Eiii) as there shall be no juridical proceeding or regulatory action instituted by or against the Borrower, or, to the incumbency and specimen signature best of each Borrower's knowledge, any threatened proceeding or action which may materially adversely affect the business, property, operation, or financial condition of the Borrower. By acceptance of a Loan, Borrower represents as of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewithdate, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature that each of the officer signing such certificate.
(p) foregoing items is true. The Agent shall have received certificates of statusforegoing notwithstanding, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities Lender acknowledges that it has been advised of the provincestatus of Borrower's lease for space located at 1304 Langham Creek Drive, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers#310, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such LH▇▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender ▇▇▇▇▇, as to the satisfaction of any condition precedent set forth in on Schedule 4.5 herein, and that such status will not be deemed a breach of this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender3.2.
Appears in 1 contract
Sources: Loan Agreement (Positron Corp)
Conditions of Lending. 8.1 Conditions Precedent to Making of Revolving Initial Loans and Issuing Letters of Credit on the Effective Closing -------------------------------------------------------------- Date.. The obligation of Lender to make the initial Loan is subject to the ---- following conditions precedent having been satisfied in a manner reasonably satisfactory to Lender:
(a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent each party thereto (other than Lender) and the Lenders party hereto on the Effective Date Borrower and each Loan Party its Subsidiaries shall have performed and complied in all material respects with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party Borrower or its Subsidiaries before or on the Effective such Closing Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Datecontinuing.
(d) The Agent and the Lenders Lender shall have received such customary opinions an opinion of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, Borrower and its counselSubsidiaries substantially in the form attached hereto.
(e) The Agent Lender shall have received:
(i) each document (including, without limitation, any PPSA received authenticated copies of proper financing statements under the UCC of all jurisdictions that Lender may deem reasonably necessary or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded desirable in order to create perfect Lender's Liens and all other actions shall have been completed in favour of the Agent, for the benefit of the Agent and the Lenders, a order to give Lender first priority perfected Lien on the Collateral, prior and superior Liens in right all Collateral (subject in priority only to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers Borrower of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers Borrower to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders Lender of a certificate signed by a Responsible Officer of the BorrowersBorrower, on behalf of Borrower, dated the Effective Closing Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Credit Agreement (Data Return Corp)
Conditions of Lending. 8.1 Conditions Precedent The obligations of the October 2018 Refinancing Term B Lenders and the Incremental Term B Lenders to Making of Revolving make October 2018 Refinancing Term B Loans and Issuing Letters Incremental Term B Loans, as applicable, on the Effective Date are subject (at the time of or substantially concurrently with the making of such October 2018 Refinancing Term B Loans or Incremental Term B Loans, as applicable) to the satisfaction (or waiver in accordance with Section 9.08 of the Existing Credit Agreement or by a majority of the October 2018 Refinancing Term B Lenders or Incremental Term B Lenders) of the following conditions (the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received (i) from each October 2018 Refinancing Term B Cashless Settlement Option Lender, each October 2018 Refinancing Term B Post-Closing Option Lender and each Additional October 2018 Refinancing Term B Lender, (ii) from each Incremental Term B Lender and (iii) from each of Holdings, the Borrower, the Subsidiary Loan Parties and the Revolving Facility Lenders, either (x) a counterpart of this Agreement signed on behalf of such party (or an October 2018 Refinancing Term B Loan Consent, if applicable) or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement (or an October 2018 Refinancing Term B Loan Consent, if applicable).
(b) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Existing Term B Lender immediately prior to the Effective Date, simultaneously with the making of the October 2018 Refinancing Term B Loans, all accrued and unpaid interest on their Existing Term B Loans to, but not including, the Effective Date.
(a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Date.
(d) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counsel.
(e) The Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Administrative Agent shall have received a certificate of an Responsible Officer the Secretary or Assistant Secretary or similar officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, Party dated the Effective Date Date:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since February 7, 2018 (Athe “Prior Repricing Closing Date”),
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the certificate by-laws (or articles of incorporation partnership agreement, limited liability company agreement or other constitutive or organizational equivalent constituent and governing documents, in each case amended to date, ) of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, Party as in effect on the date of such certificate Effective Date and at all times since a date prior to the date of the resolution resolutions described in item clause (Civ) belowbelow or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (Cor partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Prior Repricing Closing Date,
(iv) certifying that attached thereto is a true and complete copy of a resolution resolutions duly adopted by such Loan Party’s the Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement and the other Loan Documents to which it such Loan Party is a partyparty and, in the case of the Borrower, the borrowings hereunder, and that such resolution has resolutions have not been modified, rescinded or amended and is are in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown effect on the certificate of good standing furnished hereinabove, and Effective Date,
(Ev) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party’s officers executing this Agreement , and
(vi) certifying as to the absence of any pending proceeding for the dissolution or any other liquidation of such Loan Document delivered in connection herewith or therewithParty or, as applicable; and a certificate to the knowledge of another such person, threatening the existence of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(pd) The Administrative Agent shall have received, on behalf of itself and the Lenders, a written opinion of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and (ii) ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, in each case, (A) dated the Effective Date, (B) addressed to the Administrative Agent and the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) The Administrative Agent shall have received certificates a solvency certificate substantially in the form of status, certificates of good standing, existence or its equivalent with respect Exhibit C to each Loan Party certified as of the Existing Credit Agreement and signed by a recent date by the appropriate Governmental Authorities Financial Officer of the province, state or other jurisdiction Borrower confirming the solvency of incorporation or organization Borrower and its Subsidiaries on a consolidated basis after giving effect to the incurrence of such Loan Party the October 2018 Refinancing Term B Loans and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property the Incremental Term B Loans on the Effective Date and conduct its businessthe use of proceeds thereof.
(qf) The Administrative Agent shall have received all fees payable thereto or to the Refinancing Arranger and the Co-Manager, on or prior to the Effective Date and, to the extent invoiced at least three (3) Business Days prior to the Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the Effective Date (which amounts may be offset against the proceeds of the Loans made hereunder).
(g) The Administrative Agent shall have received on or prior to three (3) Business Days prior to the Effective Date all documentation and other information of the type set forth in Section 3.25(a) of the Existing Credit Agreement, to the extent such information has been requested by the Administrative Agent not less than five (5) Business Days prior to the Effective Date.
(h) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrowers, Borrower dated as of the Effective Date, certifying as Date to the matters effect set forth in Sections 8.1(b5(b) and 5(d) hereof.
(c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on i) Each Lender party hereto that shall have requested a Beneficial Ownership Certificate not less than five (5) Business Days prior to the Effective Date shall be deemed to be a representation and warranty made by the Borrowers have received such certificate at least three (3) Business Days prior to the effect that all of the conditions precedent to the making of Effective Date (or such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were lesser time acceptable to such Lender).
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (PlayAGS, Inc.)
Conditions of Lending. 8.1 Conditions Precedent The obligations of the Lenders to Making make Loans hereunder are subject to the satisfaction of Revolving Loans and Issuing Letters of Credit on the Effective Date.following conditions:
(a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the The Administrative Agent shall have reasonably requested to ensure that the Agent shall have received a perfected security interest and Lien in the Collateral notice of the type and priority described in each applicable Security Documentsuch Borrowing as required by Section 2.02.
(b) All The representations and warranties made hereunder and set forth in the other Loan Documents Article III shall be true and correct in all material respects on and as if of the Closing Date with the same effect as though made on and as of such date date, except for to the extent such representations and warranties made as of a specified expressly relate to an earlier date, in which case they shall be true and correct on in all material respects on and as of such specified datesearlier date.
(c) No At the time of and immediately after the Borrowing to be made on the Closing Date, no Event of Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Datecontinuing.
(d) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counsel.
(e) The Administrative Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour on behalf of the Agent, for the benefit of the Agent itself and the Lenders, a perfected Lien on favorable written opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instrumentsBorrower, in form and substance reasonably satisfactory to the Administrative Agent, (A) dated the Closing Date, (B) addressed to the Administrative Agent and the Lenders and (C) covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby request such counsel to deliver such opinions.
(e) All legal matters incident to this Agreement, the Borrowings and extensions of credit hereunder and the other Loan Documents shall be necessary reasonably satisfactory to terminate the Lenders and satisfy all Liens on to the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinaboveAdministrative Agent.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Administrative Agent shall have received (i) copies of each a copy of the Loan Documents and schedules certificate of incorporation, including all amendments thereto, of the Borrower, TransDigm Holding, TransDigm and each other Significant Subsidiary of the Borrower, certified as of a recent date by the Secretary of State of the State of its organization, (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liabilitycertificate, dated the Effective Closing Date and signed by the Secretary or Assistant Secretary of the Borrower, certifying that (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreementof the Borrower, as TransDigm Holding, TransDigm and each other Significant Subsidiary of the case may be, Borrower as in effect on the date of such certificate Closing Date and at all times since a date prior to the date of the resolution resolutions described in item clause (CB) below, (CB) that attached thereto is a true and complete copy of a resolution resolutions duly adopted by such Loan Party’s the Board of Directors (or in the case of a Loan Party that is not a corporation, the other equivalent governing body) body of the Borrower authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a partyborrowings hereunder, and that such resolution has resolutions have not been modified, rescinded or amended and is are in full force and effect, (DC) that such Loan Party’s attached thereto is a certificate or articles of incorporation or other constitutive documents have not been amended since as to the date good standing of the last amendment thereto shown on Borrower, TransDigm Holding, TransDigm and each other Significant Subsidiary of the certificate Borrower as of good standing furnished hereinabovea recent date by the Secretary of the State of State of its organization, and (ED) as to the incumbency and specimen signature of each of such Loan Party’s officers officer executing this Agreement or any other Loan Document or any other document delivered in connection herewith or therewith, as applicable; and (ii) a certificate of another of such Loan Party’s Officers officer as to the incumbency and specimen signature of the officer signing Secretary or Assistant Secretary executing the certificate pursuant to clause (i) above; and (iii) such certificateother documents as the Lenders or the Administrative Agent may reasonably request.
(pg) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Administrative Agent shall have received a certificate from certificate, dated the Closing Date and signed by a Responsible Financial Officer of the BorrowersBorrower, dated as of confirming compliance with the Effective Date, certifying as to the matters conditions precedent set forth in Sections 8.1(bparagraphs (b) and (c). ) above.
(h) The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Administrative Agent and the Lenders of a certificate signed by a Responsible Officer of shall have received all fees and other amounts due and payable on or prior to the Borrowers, dated the Effective Closing Date, including fees pursuant to such effectthe Fee Letter and, except to the extent waived invoiced, reimbursement or postponed in writing payment of all out of pocket expenses required to be reimbursed or paid by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that Borrower thereunder, hereunder or under any other Loan Document.
(i) all conditions precedent in this Section 8.1 All requisite Governmental Authorities shall have been fulfilled approved or consented to the satisfaction of such L▇▇▇▇▇, (ii) Transactions and the decision of such Lender to execute and deliver other transactions contemplated hereby to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently extent required, all applicable appeal periods shall have expired and without reliance there shall not be any pending or threatened litigation, governmental, administrative or judicial action that could reasonably be expected to prevent or impose materially burdensome conditions on the Agent Transactions or any the other Lender as transactions contemplated hereby.
(j) The Lenders shall have received, to the satisfaction of any condition precedent set forth in this Section 8.1extent requested, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(iiik) all documents sent to such Lender for approval, consent or satisfaction were The Administrative Agent shall have received evidence acceptable to such Lender.the Administrative Agent and its counsel that the TransDigm Credit Agreement has been amended pursuant to an amendment in substantially the form of Exhibit D.
Appears in 1 contract
Sources: Loan Agreement (TransDigm Group INC)
Conditions of Lending. 8.1 Conditions Precedent to Making of Loans on the Closing Date. The obligation of the Lenders to make the initial Revolving Loans on the Closing Date, and Issuing Letters the obligation of the Administrative Agent to cause the Letter of Credit Issuer to issue any Letter of Credit on the Effective Closing Date., are subject to the following conditions precedent having been satisfied in a manner satisfactory to the Administrative Agent and each Initial Lender:
(a) This Agreement and All of the other Loan DIP Financing Documents shall have been executed by in form and substance satisfactory to the Borrowers, the Administrative Agent and the Lenders by each party hereto on thereto and accepted by the Effective Date Administrative Agent and each Loan Party the Initial Lenders and the Borrowers shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan DIP Financing Documents which are required to be performed or complied with by such Loan Party the Borrowers before or on the Effective such Closing Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made hereunder and in the other Loan DIP Financing Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter the Letters of Credit to be issued on the Effective Closing Date.
(d) The Interim Financing Order shall have been entered, shall be in full force and effect and shall not have been vacated, reversed, modified or stayed in any respect (and, if such order is the subject of a pending appeal, no performance of any obligation of any party shall have been stayed pending such appeal).
(e) All of the "first day orders" presented to the Court at or about the time of the commencement of the Chapter 11 Cases (including orders with respect to maintenance of Borrowers' cash management system) shall be satisfactory in form and substance to the Administrative Agent and the Initial Lenders.
(f) The Administrative Agent and the Initial Lenders shall have received such customary opinions of counsel for the Loan Parties Borrowers and their Subsidiaries as the Administrative Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Administrative Agent, the Lenders, and its their respective counsel.
(eg) The Administrative Agent shall have received:
received acknowledgment copies (ior confirmation satisfactory to it of the filing) each document (includingof proper financing statements, without limitation, any PPSA duly filed on or other financing statement) required by before the Security Documents Closing Date under the UCC of all jurisdictions that the Administrative Agent may deem necessary or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded desirable in order to create in favour of perfect the Administrative Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted 's Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties Borrowers shall have paid (ior made adequate provision for the payment on the Closing Date of) all fees and expenses (including Attorney Costs) of the Administrative Agent and the Attorney Costs incurred in connection with any of the Loan DIP Financing Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letterextent invoiced.
(ki) The Administrative Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Administrative Agent, of all insurance coverage as required by this Agreement Agreement.
(includingj) The Administrative Agent and the Initial Lenders shall have had an opportunity, if they so choose, to examine the books of account and other records and files of the Borrowers and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and the certificates Borrowing Base, and the results of insurance such examination and audit shall have been satisfactory to the Administrative Agent and the Lenders in all respects.
(k) All proceedings taken in connection with the execution of this Agreement and each other DIP Financing Document and all documents required by Section 7.5)and papers relating hereto or thereto shall be satisfactory in form, scope, and substance to the Administrative Agent and the Lenders.
(l) The Borrowers Administrative Agent and the Initial Lenders shall have delivered a Borrowing Base Certificate (reviewed and supporting information) to found acceptable the Agent in form and scope satisfactory to the AgentBudget.
(m) The Borrowers and each Court shall have entered an order for the joint administration of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such dateChapter 11 Cases.
(n) The Transactions Interim Pre-Petition Lender Protection Order shall have been, or contemporaneously herewith shall be, duly consummated been entered by the Court in accordance with the terms of the Loan Documents form and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable substance satisfactory to the Agent. The Administrative Agent and the Initial Lenders and shall have received (i) copies of each of the Loan Documents be in full force and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and madeeffect.
(o) The Agent No order shall have received been entered by the Court (i) for the appointment of a certificate trustee or examiner with enlarged powers substantially similar to those of an Responsible Officer of each a trustee, or (ii) converting any of the Loan Parties, on behalf Chapter 11 Cases to a Chapter 7 case or dismissing any of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying Chapter 11 Cases or (Aiii) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date terminating prior to any expiration date the date Borrowers' exclusive time period to file a plan of reorganization and, with respect to clauses (i) through (iii) above, no such order shall have been requested by the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificateBorrowers.
(p) The Agent Without limiting the generality of the items described above, the Borrowers and each Person guarantying or securing payment of the Obligations shall have received certificates of statusdelivered or caused to be delivered to the Administrative Agent (in form and substance reasonably satisfactory to the Administrative Agent), certificates of good standingthe financial statements, existence or its equivalent with respect to each Loan Party certified as of a recent date instruments, resolutions, documents, agreements, certificates, opinions and other items set forth on the "Closing Checklist" delivered by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c)Borrowers prior to the Closing Date. The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Closing Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Administrative Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Closing Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Administrative Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇Lender, (ii) the decision of such Lender to execute and deliver to the Administrative Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ Lender independently and without reliance on the Administrative Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approvalapproval consent, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Post Petition Credit Agreement (Westpoint Stevens Inc)
Conditions of Lending. 8.1 Conditions Precedent The obligations of the Lenders to Making of Revolving make Term Loans and Issuing Letters of Credit on the Effective Date.Closing Date are subject to the satisfaction of the following conditions:
(a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Date.
(d) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counsel.
(e) The Administrative Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour on behalf of the Agent, for the benefit of the Agent itself and the Lenders, a perfected Lien on written opinion of (i) White & Case LLP, counsel for Intermediate Holdings and the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instrumentsBorrower, in form and substance reasonably satisfactory to the AgentJoint Lead Arrangers and provided to the Lenders, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of White & Case LLP, counsel for Intermediate Holdings and the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited thereinBorrower, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case addressing bankruptcy non-consolidation issues in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen Joint Lead Arrangers and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal provided to the lesser Lenders, (iii) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, a Professional Association, special Delaware counsel for Intermediate Holdings and the Borrower, addressing Independent Manager provisions of the limited liability company agreements of Intermediate Holdings and the Borrower and (iiv) each local counsel listed on Schedule 4(a), substantially to the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable locationeffect set forth in Exhibit G-3, in each casecase (A) dated the Closing Date, in accordance with clause (bB) of definition of Reserves.
addressed to the Administrative Agent, the Collateral Trustee and the Lenders and (jC) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of covering such other matters relating to the Loan Documents and the transactions contemplated thereby prior to such dateTransactions as the Administrative Agent shall reasonably request, and (ii) all fees Intermediate Holdings and expenses as set forth in the Fee LetterBorrower hereby request such counsel to deliver such opinions.
(kb) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Administrative Agent shall have received (i) copies a copy of the certificate or articles of incorporation, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the Loan Documents and schedules theretostate of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer the Secretary or Assistant Secretary of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, Party dated the Effective Closing Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, by-laws of such Loan PartyParty as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it such Person is a partyparty and, in the case of the Borrower, the borrowings hereunder, and that such resolution has resolutions have not been modified, rescinded or amended and is are in full force and effect, (DC) that such Loan Party’s the certificate or articles of incorporation or other constitutive documents of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabovepursuant to clause (i) above, and (ED) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and (iii) a certificate of another of such Loan Party’s Officers officer as to the incumbency and specimen signature of the officer signing Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such certificateother documents as the Lenders or the Administrative Agent may reasonably request.
(pc) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Administrative Agent shall have received a certificate from certificate, dated the Closing Date and signed by a Responsible Financial Officer of the BorrowersBorrower, dated as of confirming compliance with the Effective Date, certifying as to the matters conditions precedent set forth in Sections 8.1(bparagraphs (y) and (c). z) of Article IV.
(d) The acceptance Administrative Agent shall have received all Administrative Agent Fees and all other costs, fees, expenses (including legal fees and expenses, title premiums, survey charges and recording taxes and fees) and other compensation contemplated by the Borrowers of any Revolving Loans made Transactions payable to the Administrative Agent or any Letters of Credit issued on the Effective Date Joint Lead Arrangers, the Co-Manager or the Lenders to the extent due and to the extent a reasonably detailed invoice has been delivered to the Borrower at least three business days prior to the Closing Date.
(e) The Security Documents shall be deemed have been duly executed by each Loan Party that is to be a representation party thereto and warranty made by shall be in full force and effect on the Borrowers Closing Date. The Collateral Trustee on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document.
(f) The Collateral Trustee shall have received a Perfection Certificate with respect to the effect that all of Loan Parties dated the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent Closing Date and the Lenders of a certificate signed duly executed by a Responsible Officer of Intermediate Holdings and the BorrowersBorrower, dated and shall have received the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender results of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in this the states (or other jurisdictions) of formation of such Persons, in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property, in each case as indicated on such Perfection Certificate; and (ii) a search of the title records of the United States Patent and Trademark Office and the United States Copyright Office or agencies with respect to IP Rights indicated as registered or issued therefrom on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Trustee that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 8.1 6.02 or have been fulfilled or will be contemporaneously released or terminated.
(g) (i) Each of the Mortgages relating to each Mortgaged Property set forth on Schedule 1.01(c) shall have been duly executed by the applicable Loan Party thereto and delivered to the satisfaction of such L▇▇▇▇▇Collateral Trustee and shall be in full force and effect, (ii) the decision each of such Lender Mortgaged Properties shall not be subject to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any Lien other Lender as to the satisfaction of any condition precedent set forth in this than those permitted under Section 8.16.02, and (iii) all documents sent to each of such Lender for approval, consent or satisfaction were acceptable to such Lender.Mortgages shall have
Appears in 1 contract
Sources: Credit Agreement (Dynegy Inc.)
Conditions of Lending. 8.1 Conditions Precedent The obligations of the 2019 Refinancing Term B Lenders to Making of Revolving make 2019 Refinancing Term B Loans and Issuing Letters of Credit the 2019 Refinancing Revolving Facility Lenders to provide 2019 Refinancing Revolving Facility Commitments on the 2019 Effective Date are subject to the satisfaction (or waiver by a majority of the 2019 Lenders) of the following conditions (the date of such satisfaction or waiver, the “2019 Effective Date.”):
(a) This Agreement The Administrative Agent (or its counsel) shall have received (i) from each 2019 Lender, (ii) each Issuing Bank and (iii) from each of Parent Holdco, Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other Loan Documents shall have been executed by the Borrowersmeans of electronic transmission (e.g., the Agent and the Lenders “pdf”)) that such party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have has signed a perfected security interest and Lien in the Collateral counterpart of the type and priority described in each applicable Security Documentthis Agreement.
(b) All representations The Administrative Agent shall have received a Borrowing Request as set forth in Section 4 above and warranties made hereunder and in setting forth the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as information required by Section 2.03 of a specified datethe Existing First Lien Credit Agreement, which shall Borrowing Request may be true and correct on all material respects as conditioned upon the effectiveness of such specified datesthis Agreement.
(c) No Default or Event of Default The Borrower shall have occurred and be continuing after giving effect paid to the Revolving Loans Administrative Agent, for the ratable account of each Existing Term B Lender immediately prior to the 2019 Effective Date, simultaneously with the making of the 2019 Refinancing Term B Loans, all accrued and unpaid interest and, to the extent required to be made paid by the Loan Parties under the Loan Documents, fees and any Letter of Credit to be issued other amounts accrued and unpaid on the Existing Term B Loans to, but not including, the 2019 Effective Date, and substantially simultaneously with the borrowing of the 2019 Refinancing Term B Loans, the Existing Term B Loans shall be paid in full.
(d) The Agent and the Lenders Borrower shall have received such customary opinions paid to the Administrative Agent, for the ratable account of counsel for each Existing Revolving Facility Lender immediately prior to the 2019 Effective Date, all accrued and unpaid interest and, to the extent required to be paid by the Loan Parties as under the Agent or any Lender shall requestLoan Documents, each such opinion to be in a formfees and other amounts accrued and unpaid on the Existing Revolving Facility Loans (if any) to, scopebut not including, the 2019 Effective Date, and substance reasonably satisfactory to substantially simultaneously with the Agent2019 Effective Date, and its counselthe Existing Revolving Facility Loans (if any) shall be paid in full.
(e) The Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Administrative Agent shall have received a certificate of an Responsible Officer the Executive Vice President or Vice President or similar officer of each Loan Party dated the 2019 Effective Date:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan PartiesParty, on behalf certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Parties Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and not in any personal capacity and without personal liabilitygoverning documents of such Loan Party since November 20, dated 2017 (the “November 2017 Effective Date and Date”);
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official);
(iii) either (x) certifying (A) that attached thereto is a true and complete copy of the certificate by-laws (or articles of incorporation partnership agreement, limited liability company agreement or other constitutive or organizational equivalent constituent and governing documents, in each case amended to date, ) of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, Party as in effect on the date of such certificate 2019 Effective Date and at all times since a date prior to the date of the resolution resolutions described in item clause (Civ) belowbelow or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (Cor partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the November 2017 Effective Date;
(iv) certifying that attached thereto is a true and complete copy of a resolution resolutions duly adopted by such Loan Party’s the Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement and the other Loan Documents to which it such Loan Party is a partyparty and, in the case of the Borrower, the Borrowings hereunder, and that such resolution has resolutions have not been modified, rescinded or amended and is are in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown effect on the certificate of good standing furnished hereinabove, and 2019 Effective Date;
(Ev) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party’s officers executing this Agreement ; and
(vi) certifying as to the absence of any pending proceeding for the dissolution or any other liquidation of such Loan Document delivered in connection herewith or therewithParty or, as applicable; and a certificate to the knowledge of another such person, threatening the existence of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(pf) The Administrative Agent shall have received, on behalf of itself and the 2019 Refinancing Term B Lenders, a written opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (A) dated the 2019 Effective Date, (B) addressed to the Administrative Agent, the 2019 Refinancing Revolving Facility Lenders, the Issuing Banks and the 2019 Refinancing Term B Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(g) The Administrative Agent shall have received certificates all fees payable thereto or to any 2019 Refinancing Arranger, any 2019 Refinancing Revolving Facility Lender or any 2019 Refinancing Term B Lender, on or prior to the 2019 Effective Date and, to the extent invoiced at least three Business Days prior to the 2019 Effective Date, reimbursement or payment of statusall reasonable and documented out-of-pocket expenses (including reasonable fees, certificates charges and disbursements of good standing, existence ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or its equivalent with respect to each Loan Party certified as of a recent date paid by the appropriate Governmental Authorities Loan Parties hereunder or under any Loan Document on or prior to the 2019 Effective Date (which amounts may be offset against the proceeds of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business2019 Refinancing Term B Loans made hereunder).
(qh) The Administrative Agent shall have received for the ratable benefit of (i) each 2019 Refinancing Revolving Credit Facility Lender, an upfront fee equal to 0.50% of the 2019 Refinancing Revolving Facility Commitments of each such 2019 Refinancing Revolving Credit Facility Lender and (ii) each 2019 Refinancing Term B Lender, an upfront fee (which may, at the option of such 2019 Refinancing Term B Lender, be taken in the form of original issue discount) equal to 0.50% of the 2019 Refinancing Term B Commitments of such 2019 Refinancing Term B Lender.
(i) The Administrative Agent shall have received on or prior to the 2019 Effective Date (i) all documentation and other information of the type set forth in Section 3.25(a) of the Existing First Lien Credit Agreement, to the extent such information has been requested by the Administrative Agent not less than three Business Days prior to the 2019 Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, any 2019 Lender shall have received a Beneficial Ownership Certification in relation to the Borrower to the extent such information has been requested by such 2019 Lender not less than three Business Days prior to the 2019 Effective Date.
(j) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrowers, Borrower dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the 2019 Effective Date, to such effect, except to the extent waived or postponed effect set forth in writing by Sections 5(b) and 5(d) hereof.
(k) the Agent. Execution and delivery to the Administrative Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that have received (i) all conditions precedent in this Section 8.1 have been fulfilled the results of recent UCC lien, judgment and tax searches with respect to the satisfaction of such L▇▇▇▇▇, each Loan Party and (ii) a completed standard flood hazard determination form for the decision of real property covered by the Existing Mortgage (as defined below) and if any improvements to such Lender to execute and deliver real property are located in a special flood hazard area, (A) a notification to the Borrower by the Administrative Agent an executed counterpart and countersigned by the Borrower and (B) a copy of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent flood insurance policy, the Borrower’s application for a flood insurance policy, a declaration page confirming that flood insurance has been issued, or any other Lender as evidence of flood insurance reasonably satisfactory to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderAdministrative Agent.
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (Hostess Brands, Inc.)
Conditions of Lending. 8.1 Conditions Precedent The obligation of Areawide Business Council, Inc. (the "Lender") to Making of Revolving Loans and Issuing Letters of Credit on make the Effective Date.
(a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c) No Default or Event of Default shall have occurred and be continuing after giving effect subject to the Revolving Loans to be made and any Letter fulfillment at the time of Credit to be issued on the Effective Date.
(d) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counsel.
(e) The Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen closing of each of the premises leased by such Loan Party following conditions:
SECTION 3.01: Borrower agrees to indemnify and hold Areawide Business Council, the Economic Development Administration, and the United States Department of Commerce harmless from processors and against all liabilities that may be incurred as a result of providing a loan, grant, or other award to assist, directly or indirectly, in possession the preparation of Collateral the business site or construction, renovation, or repair of any facility on the Effective Date at which (for business site, to the extent that such liabilities are incurred because of toxic or hazardous contamination of the ground water, surface, soil or other conditions caused by operations of the Borrower or any such premises or processor locations) Collateral is located of its predecessors on the Effective Date property.
SECTION 3.02: Borrower acknowledges that, when applying for this loan, Borrower completed a Certificate of Hazardous Waste, wherein borrower represented and warranted the absence of contamination from toxic or hazardous substances on the premises of Borrower's facilities. Borrower continues to represent and warrant that, to the Best of Borrower's knowledge, there exists not toxic or hazardous substances upon borrower's premises, and borrower shall not store or bury such toxic or hazardous substances on its premises during the term of this loan agreement.
SECTION 3.03: The Borrower will document a REDI loan of at least $350,000 from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, Governor's Office of Economic Development and loan from YAPG in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory $250,000. These can be documented by Standard Loan Agreements and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of ReservesPromissory Notes.
(j) SECTION 3.04: The Loan Parties Borrower will document a minimum equity injection of $800,000.
SECTION 3.05: Said loan shall have paid (i) all fees be evidenced by a Promissory Note and expenses (including Attorney Costs) shall be secured by a Mortgage on real estate of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior corporation according to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Mortgage which in addition to this Loan Agreement (the "Loan Documents") is executed contemporaneously herewith and incorporated by reference herein. The parties agree a default under the terms of any of the agreements within said Loan Documents and in compliance with shall constitute a default under all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of agreements incorporated within the said Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and madeDocuments.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Loan Agreement (Lynch Corp)
Conditions of Lending. 8.1 Conditions Precedent to Making of Revolving Loans and Issuing Letters of Credit on the Effective Date.
(a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent and The obligation of the Lenders party hereto on to make the Effective Date and each initial Revolving Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required hereunder or issue or cause to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and issued any Letter of Credit to be issued hereunder on the Effective Date.
(d) The Closing Date to the Borrowers shall be subject to the condition precedent that Agent for itself and the benefit of the Lenders shall have received such customary opinions all of counsel for the Loan Parties as the Agent or any Lender shall requestfollowing, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counsel.
(e) The Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to Agent:
(i) This Agreement, properly executed on behalf of each Borrower.
(ii) The Note drawn to the Agent, as shall be necessary to terminate and satisfy all Liens on order of each Lender in the assets and property face amount of their respective Commitment Percentage of the Loan Parties, except Permitted Liens; andCredit Limit.
(iii) the results A true and correct copy of a search of tax any and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made all leases pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral Borrower is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against leasing any such Person in (i) hereinabovereal property.
(fiv) No Material Adverse Effect Searches dated within forty-five (45) days prior to the Closing Date, of appropriate filing offices showing that (A) no state or federal tax Liens have been filed and remain in effect against any Borrower, and (B) no financing statements have been filed and remain in effect against any Borrower, except those financing statements relating to Liens set forth on Schedule “B”, the Liens of the secured lender to be paid with the proceeds of the initial loan and those financing statements filed by the Agent or by Citizens Bank New Hampshire previously, and (C) virtually simultaneously with the SVB Payoff, the Agent shall have occurred since September 30duly file all financing statements necessary to perfect the security interests granted hereunder, 2021to the extent the security interests are capable of being perfected by filing.
(gv) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment A certificate of the Agent, would reasonably be expected to (i) have a Material Adverse Effect Secretary or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen an Assistant Secretary of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective DateBorrower, in each case in form and substance reasonably satisfactory certifying as to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy the resolutions of the certificate or articles of incorporation or other constitutive or organizational documentsdirectors and, in each case amended to dateif required, the shareholders of such Loan PartyBorrower, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and related documents, (B) the other Loan Documents to which it is a partyArticles of Organization and by-laws or operating agreement, as applicable, of each Borrower, and that such resolution has not been modified(C) the signatures of the officers or agents of each Borrower authorized to execute and deliver this Agreement and other instruments, rescinded or amended agreements and is in full force and effectcertificates, including loan requests, on behalf of each Borrower.
(Dvi) that such Loan PartyA certificate dated within forty-five (45) days prior to the Closing Date, issued by the Secretary of State of the state of each Borrower’s certificate or articles of incorporation or other constitutive documents have not been amended since formation, certifying that each such Borrower is validly existing and in good standing.
(vii) Evidence that each Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary.
(viii) An opinion of counsel to the Borrowers, addressed to Agent for the benefit of all Lenders.
(ix) Certificates of the insurance required hereunder, with all property and liability insurance containing an additional insured endorsement in favor of the Agent and all property casualty insurance containing a lender’s loss payable endorsement in favor of Agent.
(x) [Reserved.]
(xi) Payment of the fees due and payable through the date of the last amendment thereto shown on initial Revolving Loan and invoiced out-of-pocket expenses incurred by Agent through such date required to be paid by Borrowers pursuant to this Agreement.
(xii) [Reserved.]
(xiii) Such other documents, instruments and agreements as Agent in its sole discretion may require.
(b) Notwithstanding anything to the certificate contrary contained in this Agreement, Borrowers acknowledge that no Revolving Loans shall be made or Letter of good standing furnished hereinaboveCredit issued until such time as (i) all SVB Liens have been released and Agent has filed all UCC financing statements required to be filed to perfect its security interests in the Collateral, and Agent has received confirmation thereof, satisfactory to the Agent in its sole discretion, and (Eii) the Borrowers have delivered a compliance certificate as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificatemonth ended March 30, 2007.
(pc) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities obligation of the province, state Lenders to make each Revolving Loan shall be subject to satisfaction or other jurisdiction waiver of incorporation or organization of the further conditions precedent on such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.date:
(qi) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated representations and warranties contained in Sections 3 and 4 hereof are correct in all material respects on and as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making date of such Revolving Loans Loan or the issuance of a Letter of Credit, as the case may be, as though made on and as of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effectdate, except to the extent waived or postponed that such representations and warranties relate solely to an earlier date and in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) case, are correct in all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction material respects as of such L▇▇▇▇▇, earlier date; and
(ii) the decision no event has occurred and is continuing, or would result from such Revolving Loan or issuance of such Lender to execute and deliver to Letter of Credit, as the Agent case may be, which constitutes an executed counterpart Event of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on Default or which, with notice or the Agent or any other Lender as to the satisfaction passage of any condition precedent set forth in this Section 8.1cure period or both, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderwould constitute an Event of Default.
Appears in 1 contract
Sources: Loan and Security Agreement (GT Solar International, Inc.)
Conditions of Lending. 8.1 Conditions Precedent to Making of Loans on the Closing Date. The obligation of the Lenders to make the initial Revolving Loans on the Closing Date, and Issuing Letters the obligation of the Agent to cause the Letter of Credit Issuer to issue any Letter of Credit on the Effective Closing Date., are subject to the following conditions precedent having been satisfied in a manner satisfactory to the Agent and each Lender:
(a) This Agreement and the other Loan Documents (including the Borrowers' Ex-Im Agreement (and the waiver letter related thereto), the Export-Import Bank of the United States Joint Application for Working Capital Guarantee, and other documents relating specifically to Ex-Im Bank Guaranteed Loans) shall have been executed by the Borrowers, the Agent each party thereto and the Lenders party hereto on the Effective Date and each Loan Party Borrowers shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party the Borrowers before or on the Effective such Closing Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) Upon making the Revolving Loans (including such Revolving Loans made to finance the Closing Fee or otherwise as reimbursement for fees, costs and expenses then payable under this Agreement) and with all its obligations current in accordance with its customary payment practices, the Borrowers shall have Availability (without regard to the Maximum Revolver Amount) of at least $15,000,000.
(c) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified datescorrect.
(cd) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter the Letters of Credit to be issued on the Effective Closing Date.
(de) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties Parent and its Subsidiaries as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and its their respective counsel.
(ef) The Agent shall have received:
(i) each document (includingfinancing statements, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration filing under the UCC in all jurisdictions that the Agent may deem necessary or recordation;desirable in order to perfect the Agent's Liens; and
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person duly executed UCC-3 Termination Statements and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property Property of the Loan Parties, Borrowers and their Subsidiaries except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties Borrowers shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such datethe extent invoiced, and (ii) all fees and expenses as set forth in including the amounts owing on the Closing Date under the Fee LetterLetter and under Section 2.4.
(kh) The Agent shall have received evidence, in form, scope, and substance, substance reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement Agreement.
(includingi) The Agent and the Lenders shall have had an opportunity, if they so choose, to examine the books of account and other records and files of the Parent and its Subsidiaries and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and the certificates Borrowing Base, and the results of insurance such examination and audit shall have been satisfactory to the Agent and the Lenders in all respects.
(j) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent and its counsel and the Lenders.
(k) Without limiting the generality of the items described above, each Loan Party and each Person securing payment of the Obligations shall have delivered or caused to be delivered to the Agent (in form and substance reasonably satisfactory to the Agent), the financial statements, instruments, resolutions, documents, agreements, certificates, opinions and other documents required items set forth on the "Closing Checklist" delivered by Section 7.5)the Agent to the Borrowers prior to the Closing Date.
(l) The Borrowers Agent shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent received evidence, in form and scope substance satisfactory to the Agent, of the consummation of the Acquisition on terms acceptable to the Agent, including (i) satisfactory legal documentation, (ii) the Agent's satisfaction with the Parent and its Subsidiaries' corporate, capital and ownership structures after giving effect to the Acquisition, and (iii) all government, shareholder and third party consents (including ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ clearance, if applicable) deemed necessary or appropriate by the Agent shall have been obtained.
(m) The Borrowers and each No material adverse change, in the opinion of the Guarantors Agent, shall have provided occurred in the documentation assets, liabilities, business, financial condition, business prospects, or results of operations of Serrot International, Inc. and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such dateits Subsidiaries.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each evidence, in form and substance satisfactory to the Agent, that at least one-half of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and madeBorrowers' estimated Debt for borrowed money outstanding on the Closing Date bears interest at a fixed rate.
(o) The Agent shall have received a certificate of an Responsible Officer of each evidence, in form and substance satisfactory to the Agent, of the Loan Parties, concurrent closing and receipt by the Borrowers of a minimum of $25,000,000 of Term Debt on behalf of the Loan Parties terms and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior conditions satisfactory to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificateAgent.
(p) The Agent Intercreditor Agreement shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party been executed and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its businessdelivered.
(q) The Agent shall have received a certificate from a Responsible Officer Preliminary Closing Date Adjusted Net Working Capital (as defined in the Stock Purchase Agreement that is part of the BorrowersAcquisition Documents) of Serrot International, dated as Inc. and its Subsidiaries shall not be less than $47,146,000 minus the amount, if any, by which the purchase price for the Acquisition is reduced at the closing of the Effective Date, certifying as Acquisition pursuant to the matters in Sections 8.1(b) and (c)such Stock Purchase Agreement. The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Closing Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfiedsatisfied (except to the extent waived in writing), with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Closing Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approvalapproval consent, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Conditions of Lending. 8.1 Section 4.1 Conditions Precedent to Making the Initial Revolving and Term Advances. The Lender's obligation to make the initial Revolving and Term Advances hereunder shall be subject to the condition precedent that the Lender shall have received all of Revolving Loans the following, each in form and Issuing Letters of Credit on substance satisfactory to the Effective Date.Lender:
(a) This Agreement and the other Loan Documents shall have been Agreement, properly executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security DocumentBorrower.
(b) All representations and warranties made hereunder and in The Notes, properly executed by the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified datesBorrower.
(c) No Default or Event A true and correct copy of Default shall have occurred any and be continuing after giving effect all leases pursuant to which the Revolving Loans Borrower is leasing the Premises, together with a landlord's disclaimer and consent with respect to be made and any Letter of Credit to be issued on the Effective Dateeach such lease.
(d) The Agent A true and correct copy of any and all mortgages pursuant to which the Lenders shall have received such customary opinions of counsel for Borrower has mortgaged the Loan Parties as the Agent or any Lender shall requestPremises, together with a mortgagee's disclaimer and consent with respect to each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counselmortgage.
(e) The Agent shall have received:
(i) each document (includingLife Insurance Assignment, without limitation, any PPSA or other financing statement) required properly executed by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filedbeneficiary and owner thereof, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the LendersLife Insurance Policy, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, each in form and substance reasonably satisfactory to the AgentLender, together with such evidence as shall be necessary the Lender may request that the Life Insurance Policy is subject to terminate and satisfy all Liens on no assignments or encumbrances other than the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinaboveLife Insurance Assignment.
(f) No Material Adverse Effect shall have occurred since September 30The Lockbox Agreement, 2021properly executed by the Borrower, ▇▇▇▇▇ Fargo and Regulus West, LLC.
(g) There shall exist no actionThe Patent and Trademark Security Agreement, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in properly executed by the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or therebyBorrower.
(h) Each Loan Party shall Current searches of appropriate filing offices showing that (i) no state or federal tax liens have established Blocked Account Agreements been filed and remain in respect effect against the Borrower, (ii) no financing statements or assignments of its deposit accounts for collections patents, trademarks or copyrights have been filed and remain in effect against the Borrower except those financing statements and assignments of Accounts at a Clearing Bank reasonably acceptable patents, trademarks or copyrights relating to Permitted Liens or to liens held by Persons who have agreed in writing that upon receipt of proceeds of the Advances, they will deliver UCC releases and/or terminations and releases of such assignments of patents, trademarks or copyrights satisfactory to the Agent Lender, and shall cause (iii) the Lender has duly filed all proceeds of Accounts financing statements necessary to be deposited thereinperfect the Security Interest, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29extent the Security Interest is capable of being perfected by filing.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each A certificate of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises Borrower's Secretary or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory Assistant Secretary certifying as to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) resolutions of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such dateBorrower's directors and, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidenceif required, in formshareholders, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effectDocuments, (Dii) that such Loan Party’s certificate or the Borrower's articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinaboveand bylaws, and (Eiii) as the signatures of the Borrower's officers or agents authorized to execute and deliver the Loan Documents and other instruments, agreements and certificates, including Advance requests, on the Borrower's behalf.
(j) A current certificate issued by the Secretary of State of Utah, certifying that the Borrower is in compliance with all applicable organizational requirements of the State of Utah.
(k) Evidence that the Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary.
(l) A certificate of an officer of the Borrower confirming, in his personal capacity, the representations and warranties set forth in Article V.
(m) An opinion of counsel to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewithBorrower, as applicable; and a certificate of another of such Loan Party’s Officers as addressed to the incumbency and signature Lender.
(n) Certificates of the officer signing such certificateinsurance required hereunder, with all hazard insurance containing a lender's loss payable endorsement in the Lender's favor and with all liability insurance naming the Lender as an additional insured.
(o) A separate guaranty, properly executed by each Guarantor, pursuant to which each Guarantor unconditionally guarantees the full and prompt payment of all Obligations.
(p) The Agent shall have received certificates A waiver of statusinterest, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date properly executed by the appropriate Governmental Authorities spouse of the provinceGuarantor, state or other jurisdiction waiving any and all interest such spouse may have in the assets disclosed to the Lender in the financial statements of incorporation or organization of such Loan Party the Guarantor and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own any future earnings or lease its property and conduct its businessassets acquired by the Guarantor.
(q) The Agent shall have received a certificate from a Responsible Officer An opinion of counsel to each Guarantor, addressed to the Lender.
(r) Payment of the Borrowers, dated as fees and commissions due through the date of the Effective Date, certifying as to the matters in Sections 8.1(b) initial Advance under Section 2.3 and (c). The acceptance expenses incurred by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed Lender through such date and required to be a representation and warranty made paid by the Borrowers to Borrower under Section 9.6, including all legal expenses incurred through the effect that all date of this Agreement.
(s) Evidence of the conditions precedent to the making commitment of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as Bank to provide a term loan to the satisfaction Borrower, in the amount of any condition precedent set forth $1,100,000, secured by certain equipment and real estate of the Borrower.
(t) Such other documents as the Lender in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderits sole discretion may require.
Appears in 1 contract
Conditions of Lending. 8.1 Conditions Precedent SECTION 3.01. CONDITIONS PRECEDENT TO THE MAKING OF THE INITIAL REVOLVING CREDIT LOAN AND THE ISSUANCE OF THE INITIAL LETTER OF CREDIT. The obligation of the Lenders to Making make the initial Revolving Credit Loans contemplated by this Agreement and the obligation of Revolving Loans and the Issuing Letters Bank to issue the initial Letter of Credit on or create the Effective Date.initial B/A contemplated by this Agreement is subject to the following conditions precedent, the satisfaction of which shall be, and each of which shall be in form and substance, satisfactory to the Agent, the Lenders and their counsel:
(a) This The Agent shall have received the Revolving Credit Notes duly executed and payable to the order of each of the Lenders.
(b) The Agent shall have received certified (as of the date of this Agreement) copies of the resolutions of the Board of Directors of the Borrower authorizing the Loans and authorizing and approving this Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date execution, delivery and each Loan Party shall have performed performance thereof and complied certified copies of all documents evidencing other necessary corporate action and governmental approvals, if any, with all covenants, agreements respect to this Agreement and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified datesDocuments.
(c) No Default or Event of Default The Agent shall have occurred received certified (as of the date of this Agreement) copies of the resolutions of the Board of Directors and, if required under applicable law, the shareholders of each of the Guarantors, authorizing and be continuing after giving effect to the Revolving Loans to be made approving this Agreement, its Confirmation of Guaranty and any Letter other Loan Document applicable to such Guarantors, and the execution, delivery and performance thereof and certified copies of Credit all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to be issued on this Agreement, its Confirmation of Guaranty and the Effective Dateother Loan Documents.
(d) The Agent and the Lenders shall have received such customary opinions a certificate of counsel for the Secretary or an Assistant Secretary (attested to by another officer) of the Borrower certifying: (i) the names and true signatures of the officer or officers of the Borrower authorized to sign this Agreement, the Notes and the other Loan Parties as the Agent or any Lender shall request, each such opinion Documents to be in delivered hereunder on behalf of the Borrower; and (ii) a form, scope, copy of the Borrower's by-laws as complete and substance reasonably satisfactory to correct on the Agent, and its counseldate of this Agreement.
(e) The Agent shall have received:
received a Certificate of the Secretary or an Assistant Secretary (attested to by another officer) of each of the Guarantors certifying (i) each document (includingthe names and true signatures of the officer or officers of the Guarantors authorized to sign this Agreement, without limitation, any PPSA or other financing statement) required by the Security Documents or their Guaranties and any other Loan Document or reasonably requested by the Agent Documents to be filed, registered or recorded in order to create in favour delivered hereunder on behalf of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
Guarantors; (ii) estoppel documentation, PPSA or termination or discharge statements (a copy of each of the Guarantors' by-laws as complete and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens correct on the assets date of this Agreement; and property of the Loan Parties, except Permitted Liens; and
(iii) the results stock ownership of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinaboveGuarantor.
(f) No Material Adverse Effect The Agent shall have occurred since September 30, 2021received copies of the certificate of incorporation and all amendments thereto of the Borrower and the Guarantors certified in each case by the Secretary of State (or equivalent officer) of the state of incorporation of each of the Borrower and the Guarantors and a certificate of existence and good standing with respect to the Borrower and the Guarantors from the Secretary of State (or equivalent officer) of the state of incorporation of the Borrower and the Guarantors) and from the Secretary of State (or equivalent officer) of any state in which the Borrower or the Guarantors are required to be authorized to do business.
(g) There The Agent shall exist no actionhave received an opinion, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in addressed to the reasonable judgment Agent and each of the AgentLenders, would of Proskauer Rose LLP, counsel for the Borrower and the Guarantors as to certain matters referred to in Article IV hereof and as to such other matters as the Agent or its counsel may reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or therebyrequest.
(h) Each Loan Party The Agent shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited thereinreceived from each Guarantor, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29an executed Guaranty.
(i) Each Loan Party The Agent shall have used its reasonable commercial efforts to obtain received evidence that the Borrower and deliver to the Agent landlord waivers each Guarantor maintain adequate casualty and processor liability insurance, with financially sound and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises reputable insurance companies or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Dateassociations, in each case such amounts and covering such risks as are usually carried by companies engaged in form similar businesses and substance reasonably satisfactory to owning properties and doing business in the Agent, duly executed by, as appropriate, such landlords, warehousemen same general areas in which the Borrower and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of ReservesGuarantors operate.
(j) The Loan Parties Agent shall have paid (i) received and satisfactorily reviewed all fees credit agreements and expenses (including Attorney Costsother similar agreements described in Section 4.01(t) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letterthis Agreement.
(k) The Agent shall have received evidenceand satisfactorily reviewed the audited consolidated financial statements of the Borrower and its Consolidated Subsidiaries for the fiscal year ended December 31, 2003 and a draft compliance certificate of the Borrower for the fiscal year ended December 31, 2003 demonstrating compliance with the covenants contained in form, scope, and substance, reasonably satisfactory to the Agent, Section 5.03 of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5)Agreement.
(l) The Borrowers Agent and the Lenders shall have delivered received and satisfactorily reviewed the Senior Note Amendment.
(m) The following statements shall be true and the Agent shall have received a Borrowing Base Certificate certificate signed by the President or the Chief Financial Officer of the Borrower dated the date hereof, stating that:
(i) After giving effect to the execution and supporting informationdelivery of this Agreement and the Senior Note Amendment, the representations and warranties contained in Article IV of this Agreement and in the Loan Documents are true and correct in all material respects on and as of such date, except for those relating to an earlier date, which shall remain true and correct as of such earlier date; and
(ii) No Default or Event of Default has occurred and is continuing, or would result from the making of the Revolving Credit Loans.
(n) Receipt by the Agent of (i) the facility fees payable to the Lenders, (ii) its administrative fee together with all other fees payable pursuant to the Fee Letter.
(o) All schedules, documents, certificates and other information provided to the Agent or any Lender pursuant to or in form connection with this Agreement shall be reasonably satisfactory to the Agent and scope its counsel in all respects.
(p) All legal matters incident to this Agreement and the transactions contemplated hereby shall be satisfactory to Cullen and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Agent.
(mq) The Borrowers and each Receipt by the Agent of such other approvals, opinions or documents as the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such dateAgent or its counsel may reasonably request.
(nr) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with Payment by the terms Borrower of the Loan Documents reasonable fees and in compliance with all material applicable Requirements expenses of Law, on terms reasonably acceptable counsel to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Conditions of Lending. 8.1 10.1 Conditions Precedent to Making of Loans on the Closing Date. The ----------------------------------------------------------- obligation of the Lenders to make the initial Revolving Loans on the Closing Date, and Issuing Letters the obligation of the Agent to cause to be issued or provide Credit Support for any Letter of Credit on the Effective Date.Closing Date and the obligation of the Lenders to participate in Letters of Credit issued on the Closing Date or in Credit Support for any Letters of Credit, are subject to the following conditions precedent having been satisfied in a manner satisfactory to the Agent and each Lender:
(a) This Agreement and the other Loan Documents shall which are set forth on Exhibit "D" hereto have been executed by the Borrowers, the Agent each party thereto and the Lenders party hereto on the Effective Date and each Loan Party Borrowers ----------- shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party the Borrowers before or on the Effective such Closing Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) Upon making the Revolving Loans and provided for the issuance of Letters of Credit on the Closing Date (including such Revolving Loans made to finance all fees payable on the Closing Date, or otherwise pursuant to Section ------- 4.7 as reimbursement for fees, costs and expenses then payable under this --- Agreement) and with all its obligations current, the Borrowers would have excess Availability in an amount not less than ten percent (10%) of Availability as of the Closing Date prior to taking into account the Revolving Loans made and the Letters of Credit issued on the Closing Date.
(c) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as of the Closing Date as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(cd) No Default or Event of Default shall have occurred and be continuing exist on the Closing Date, or would exist after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Datesuch date.
(de) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties ABT and its Subsidiaries as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and its their respective counsel.
(ef) The Agent shall have received:
(i) each document (includingacknowledgment copies of proper financing statements, without limitation, any PPSA duly filed on or other financing statement) required by before the Security Documents or any other Loan Document or reasonably requested by Closing Date under the UCC of all jurisdictions that the Agent to be filed, registered may deem necessary or recorded desirable in order to create in favour of perfect the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;'s Lien; and
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person duly executed UCC-3 Termination Statements and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets Property of ABT and property of the Loan Parties, its Subsidiaries except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties Borrowers shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letterextent invoiced.
(kh) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement Agreement.
(includingi) The Agent and the Lenders shall have had an opportunity, if they so choose, to examine the books of account and other records and files of the Borrowers and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Availability, and the certificates results of insurance such examination and other documents required by Section 7.5)audit shall have been satisfactory to the Agent and the Lenders in all respects.
(lj) The Borrowers All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall have delivered a Borrowing Base Certificate (be satisfactory in form, scope, and supporting information) substance to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c)Lenders. The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Closing Date shall be deemed to be a representation and warranty made by the Borrowers each Borrower to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the BorrowersBorrower, dated the Effective Closing Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 10.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, ------------ Lender and (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.10.1. ------------
Appears in 1 contract
Conditions of Lending. 8.1 Conditions Precedent The obligations of Lender to Making make a Loan is subject to the fulfillment of Revolving Loans and Issuing Letters of Credit on the Effective Date.following conditions:
(a) This Agreement and the other Loan Documents 3.1. The following documents shall have been duly authorized, executed and delivered by the BorrowersBorrower to the Lender, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Date.
(d) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counsel.
(e) The Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as Lender and its counsel and shall be necessary to terminate in full force and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior the Loan. Prior to the date first Loan:
(a) an executed Loan Agreement, and all executed documents, certificates and instruments contemplated by this Loan Agreement, including but not limited to the Security Agreement;
(b) a certified copy of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s the Board of Directors (of Borrower, certified by the Secretary or in the case of a Loan Party that is not a corporationresponsible officer thereof, the equivalent governing body) duly authorizing the execution, delivery and performance of this Loan Agreement and the Note contemplated hereby;
(c) a certificate of recent date from the Secretary of State of the state of incorporation of Borrower as to its good standing;
(d) an incumbency certificate of Borrower dated as of the date of funding, as to (i) the person or persons authorized to execute and deliver this Loan Agreement, the Note, the Security Agreement, and any other Loan Documents documents to which it is be executed on behalf of them in connection with the transactions contemplated hereby and (ii) the signature of each person or persons;
(e) the executed Note;
(f) documentary evidence satisfactory to Lender that any and all liens or other security interests on any of Borrower's tangible or intangible property, including but not limited to accounts, computer hardware and software, copyrights, equipment, inventory, licenses, patents, trade secrets, trademarks, general intangibles, chattel paper or other property, and all proceeds thereof, shall have been released or otherwise subordinated to Lender's security interests contemplated herein, except as otherwise provided by that certain agreement by and among ProFutures Bridge Capital Fund, L.P., a partyDelaware limited partnership ("ProFutures"), Lender and Borrower, dated as of April 28, 1998 and attached hereto as Exhibit D, and except as provided by that certain agreement by and among Uro-Tech, Ltd., Lender and Borrower, dated as of April 28, 1998 and attached hereto as Exhibit E; and
(g) an expense plan and budget, including an acceptable cash control system for managing expenditures within the plan and budget, ("Expense Plan"), attached hereto as Schedule 3.1(g) ; and
(h) documentary evidence satisfactory to Lender that any Letter of Intent or contract arrangements of whatever nature between Borrower and CTI PET Systems, Inc. have expired or otherwise been terminated, and that there are no obligations of whatever nature in effect between Borrower and CTI PET Systems, Inc. For each Loan (including the first):
(i) an officer's certificate in the form of Exhibit B which shall include the written request from Borrower setting forth the requested amount of the Loan and the proposed date of borrowing;
(j) for each Loan after the first Loan, documentary evidence satisfactory to Lender, including but not limited to Exhibit B, that Borrower is adhering strictly to the Expense Plan; and
(k) such resolution other documents and evidence with respect to Borrower as Lender may reasonably request.
3.2. On the date of each borrowing pursuant to Section 2.1 above, (i) no Default or event that with the giving of notice or lapse of time or both would constitute a Default hereunder has not been modified, rescinded or amended occurred and is in full force and effectcontinuing or would result from the performance of this Loan Agreement, (Dii) that such Loan Party’s certificate or articles of incorporation or other constitutive documents no material adverse change shall have not been amended occurred since the date of this Loan Agreement in the last amendment thereto shown on financial condition or operations of the certificate of good standing furnished hereinaboveBorrower, and (Eiii) as there shall be no juridical proceeding or regulatory action instituted by or against the Borrower, or, to the incumbency and specimen signature best of each Borrower's knowledge, any threatened proceeding or action which may materially adversely affect the business, property, operation, or financial condition of the Borrower. By acceptance of a Loan, Borrower represents as of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewithdate, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature that each of the officer signing such certificate.
(p) foregoing items is true. The Agent shall have received certificates of statusforegoing notwithstanding, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities Lender acknowledges that it has been advised of the provincestatus of Borrower's lease for space located at 1304 Langham Creek Drive, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers#310, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such LHo▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender ▇▇▇▇▇, as to the satisfaction of any condition precedent set forth in on Schedule 4.5 herein, and that such status will not be deemed a breach of this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender3.2.
Appears in 1 contract
Sources: Loan Agreement (Imatron Inc)
Conditions of Lending. 8.1 Conditions Precedent The obligations of the Lenders to Making of make Revolving Loans and Issuing Letters hereunder are subject to the satisfaction of Credit the following conditions on the Effective Date.date of each Borrowing (each such event being called a “Credit Event”):
(a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document[Reserved].
(b) All The representations and warranties made hereunder set forth in Article III and in the each other Loan Documents Document shall be true and correct in all material respects (except representations and warranties that are qualified by materiality or similar qualifiers are true and correct in all respects) on and as if of the date of such Credit Event with the same effect as though made on and as of such date date, except for to the extent such representations and warranties made as of a specified expressly relate to an earlier date, which shall be true and correct on all material respects as of such specified dates.
(c) No At the time of and immediately after such Credit Event, no Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Datecontinuing.
(d) The Agent Immediately after giving effect to such Credit Event and the Lenders use of proceeds thereof, (A) with respect to the Credit Event on the Closing Date, the Borrower shall be in pro forma compliance with (i) the financial covenant set forth in Section 6.09(a) as of October 31, 2018 and (ii) the financial covenant set forth in Section 6.09(b) as of the Closing Date, (B) with respect to any Credit Event after the Closing Date, the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.09(a) and (b) and (C) Aggregate Revolving Credit Exposures shall not exceed the Total Commitment. The Borrower shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory delivered to the AgentAdministrative Agent a Covenant Certificate dated as of the Closing Date which shall (x) demonstrate compliance with clause (A) as of October 31, 2018 and its counsel(y) certify compliance with clause (A)(ii) as of the Closing Date.
(e) The Agent No Regulatory Notice Event shall have received:
occurred and be continuing or be currently threatened, except in the case of any Regulatory Notice Events for which each of the Administrative Agent and the Bondholder Designee has been notified in accordance with Section 5.05(f) and with respect to any such notified Regulatory Notice Event, neither the Administrative Agent nor the Bondholder Designee has provided notice in writing to the Borrower prior to the time of any requested Borrowing that such Regulatory Notice Event is material (it being understood that this condition (e) shall not be satisfied if either of the Administrative Agent or the Bondholder Designee provides the Borrower with written notice prior to the time of such requested Borrowing that such notified Regulatory Notice Event is material), unless: (i) each document (includingthe Administrative Agent or the Bondholder Designee, without limitationas applicable, any PPSA has rescinded such written notice or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA the Regulatory Notice Event for which the Administrative Agent or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the AgentBondholder Designee, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Partiesapplicable, except Permitted Liens; and
(iii) the results of has provided such a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person written notice is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinaboveno longer continuing.
(f) No Material Adverse Effect shall have occurred since September 30, 2021[Reserved].
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby[Reserved].
(h) Each Since the effective date of the most recently delivered Compliance Certificate, the Borrower and the Loan Party shall Parties have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance complied with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29Loan Receivable Selection Policy.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) or reimbursed the Administrative Agent, the Bondholder Designee and the Lenders and Holders for all fees costs and expenses required to be paid or reimbursed by them on the Permitted Borrowing Date in accordance with Section 9.04 hereof.
(including Attorney Costsj) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter[Reserved].
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5)[Reserved].
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent[Reserved].
(m) The Borrowers and each Administrative Agent shall have received a customary certificate dated the Closing Date, signed by a Responsible Officer of the Guarantors shall have provided Borrower, confirming compliance with the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, conditions precedent set forth in each case at least three (3) business days prior to such datethis Article IV.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly been consummated in accordance with and the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Administrative Agent shall have received (i) executed copies of each of all agreements, documents and instruments related thereto. Each Credit Event shall be deemed to constitute a representation and warranty by the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect Borrower on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying Credit Event as to the matters specified in Sections 8.1(bparagraphs (b), (c), (d), (e) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart h) of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderArticle IV.
Appears in 1 contract
Conditions of Lending. 8.1 Conditions Precedent The obligations of the Lenders to Making of Revolving make the New Term Loans and Issuing Letters of Credit hereunder on the Effective Date.Restatement Date are subject to the satisfaction of the following conditions:
(a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the The Administrative Agent shall have reasonably requested to ensure that the Agent shall have received a perfected security interest and Lien in the Collateral notice of the type and priority described in each applicable Security DocumentBorrowing as required by Section 2.03.
(b) All The representations and warranties made hereunder set forth in Article III hereof and in the each other Loan Documents Document shall be true and correct in all material respects on and as if of the date of such Borrowing with the same effect as though made on and as of such date date, except for to the extent such representations and warranties made as of a specified expressly relate to an earlier date, which shall be true and correct on all material respects as of such specified dates.
(c) No The Borrower and each other Loan Party shall be in compliance with all the terms and provisions set forth herein and in each other Loan Document on its part to be observed or performed at or prior to the time of such Borrowing, and at the time of and immediately after such Borrowing, no Event of Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Datecontinuing.
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, a favorable written opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P., counsel for the Borrower, substantially to the effect set forth in Exhibit G-1, and (ii) each local counsel listed on Schedule 4(d), substantially to the effect set forth in Exhibit G-2, in each case (A) dated the Restatement Date, (B) addressed to the Administrative Agent and the Lenders shall have received and (C) covering such customary opinions of counsel for other matters relating to the Loan Parties Documents and the Transactions as the Administrative Agent or any Lender shall reasonably request, each and the Borrower hereby requests such opinion counsel to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counseldeliver such opinions.
(e) The Agent shall have received:
(i) each document (includingAll legal matters incident to this Agreement, without limitation, any PPSA or other financing statement) required by the Security Documents or any Borrowings and extensions of credit hereunder and the other Loan Document or reasonably requested by the Agent to Documents shall be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Lenders and to the Administrative Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Administrative Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liabilitycertificate, dated the Effective Restatement Date and signed by the Secretary or Assistant Secretary of each Loan Party, certifying that (A) that except as set forth on any schedule attached thereto, the certificate or articles of incorporation of such Loan Party previously delivered on the Closing Date (or such later date on which such person became a Loan Party) have not been amended since the date of such delivery, (B) except as set forth on any schedule attached thereto, the by-laws of such Loan Party as in effect and delivered on the Closing Date (or such later date on which such person became a Loan Party) have not been amended since the date of such delivery, (C) attached thereto is a true and complete copy of resolutions duly adopted by the certificate or articles Board of incorporation or other constitutive or organizational documents, in each case amended to date, Directors of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of the Amendment Agreement (including Exhibit A thereto in the form of this Agreement Agreement) and the other Loan Documents to which it such person is a partyparty and, in the case of the Borrower, the borrowings hereunder, and that such resolution has resolutions have not been modified, rescinded or amended and is are in full force and effect, (D) that attached thereto is a certificate as to the good standing of such Loan Party’s certificate or articles Party as of incorporation a recent date by the Secretary of State (or other constitutive documents have not been amended since the date similar official) of the last amendment thereto shown on the certificate jurisdiction of good standing furnished hereinaboveits organization, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers officer executing this the Amendment Agreement or any other Loan Document or any other document delivered in connection herewith or therewith, as applicableon behalf of such Loan Party; and (ii) a certificate of another of such Loan Party’s Officers officer as to the incumbency and specimen signature of the officer signing Secretary or Assistant Secretary executing the certificate pursuant to clause (i) above; and (iii) such certificateother documents as the Lenders or the Administrative Agent may reasonably request.
(pg) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Administrative Agent shall have received a certificate from certificate, dated the Restatement Date and signed by a Responsible Financial Officer of the BorrowersBorrower, dated as of confirming compliance with the Effective Date, certifying as to the matters conditions precedent set forth in Sections 8.1(bparagraphs (b) and (c) of this Article IV.
(h) The Administrative Agent shall have received the financial statements and opinion referred to in Section 3.05 (which shall not reflect a material adverse change in the financial condition of the Borrower from the forecasts previously provided to the Lenders in the Confidential Information Memorandum).
(i) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Restatement Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(j) The Security Documents shall be in full force and effect on the Restatement Date, and each document (including Uniform Commercial Code financing statements and modifications to the Mortgages referred to in Section 3.04(a)) required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded in order to create or continue in favor of the Collateral Agent for the benefit of the Secured Parties a valid, legal and perfected first-priority Lien on, and security interest in, the Collateral (subject to any Liens expressly permitted by Section 6.02) shall have been delivered to the Collateral Agent. The acceptance by Pledged Collateral (as defined in the Borrowers of any Revolving Loans made or any Letters of Credit issued on Guarantee and Collateral Agreement) and the Effective Date Foreign Pledged Collateral shall be deemed to be a representation duly and warranty made by validly pledged under the Borrowers Guarantee and Collateral Agreement or the applicable Foreign Pledge Agreement, as the case may be, to the effect that all Collateral Agent for the benefit of the conditions precedent Secured Parties, and certificates representing such Pledged Collateral and Foreign Pledged Collateral, in each case accompanied by instruments of transfer and stock powers endorsed in blank, shall have been delivered to the making of such Revolving Loans or Collateral Agent.
(k) The Collateral Agent shall have received a certificate, dated the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent Restatement Date and the Lenders of a certificate signed by a Responsible Officer of the BorrowersBorrower, dated the Effective Date, to such effectcertifying that, except as set forth on any schedule attached thereto, the information set forth on the Perfection Certificate is complete, correct and accurate as of the Restatement Date.
(l) The Amendment Agreement shall have become effective in accordance with its terms.
(m) The Existing Term Loans (to the extent waived such Existing Term Loans are not exchanged for New Term Loans as provided for in the Amendment Agreement), together with accrued and unpaid interest thereon, shall have been repaid, or postponed shall be repaid simultaneously with the Borrowing of the New Term Loans hereunder.
(n) All principal, premium, if any, interest, fees and other amounts due or outstanding under the Second Lien Credit Agreement shall have been paid in writing by full, the Agentcommitments thereunder terminated and all guarantees and security in support thereof discharged and released, and the Administrative Agent shall have received reasonably satisfactory evidence thereof. Execution and delivery Immediately after giving effect to the Agent by a Lender of a counterpart of Transactions and the other transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no Indebtedness or Preferred Equity Interests other than (a) Indebtedness outstanding under this Agreement and (b) Indebtedness set forth on Schedule 6.01.
(o) All requisite Governmental Authorities and third parties shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled approved or consented to the satisfaction of such L▇▇▇▇▇, (ii) Transactions and the decision of such Lender to execute and deliver other transactions contemplated hereby to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently extent required, all applicable appeal periods shall have expired and without reliance there shall not be any pending or threatened litigation, governmental, administrative or judicial action that could reasonably be expected to restrain, prevent or impose materially burdensome conditions on the Agent Transactions or any the other Lender as transactions contemplated hereby.
(p) The Lenders shall have received, to the satisfaction of any condition precedent set forth in this Section 8.1extent requested, all documentation and (iii) all documents sent to such Lender for approvalother information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, consent or satisfaction were acceptable to such Lenderincluding the USA Patriot Act.
Appears in 1 contract
Conditions of Lending. 8.1 Conditions Precedent Section 3.1. Lender's obligations under this Agreement are conditioned upon Borrower furnishing Lender with the following, each duly executed and dated as of the date of this Agreement, and with each being in form and substance satisfactory to Making of Revolving Loans and Issuing Letters of Credit on the Effective Date.Lender, to wit:
(a) This Agreement A copy, duly certified by Borrower's secretary, of (i) the resolutions of such Borrower's officers authorizing the borrowings hereunder and the execution and delivery of this Agreement, the Note, and the other Loan Documents shall have been executed by the BorrowersDocuments, (ii) a resolution of Borrower appointing and authorizing an Authorized Officer/s for Borrower, (iii) all documents evidencing other necessary corporate action, and (iv) all approvals or consents, if any, with respect to this Agreement, the Agent Note, and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security DocumentDocuments.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as A certificate of such specified datesBorrower's secretary certifying the names of the Officer/s authorized to sign this Agreement, the Note, and all other documents and certificates to be delivered by Borrower hereunder, together with the true signatures of such officers.
(c) No Default or Event of Default shall have occurred The Note, Security Agreement and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective DateUCC-1 Financing Statements.
(d) The Agent opinion of Saul, Ewing, Re▇▇▇▇ & Sa▇▇, LLP, Borrower's counsel, addressed to Lender, to the effect that, based upon such counsel's review of the books and records of Borrower and inquiry with the Lenders shall have received such customary opinions officers and employees of counsel for Borrower: (i) as to the compliance with the matters set forth in this Loan Agreement; and (ii) the Loan Parties as Documents are the Agent or any Lender shall request, each such opinion to be legal and binding obligations of Borrower which are enforceable in a form, scope, and substance reasonably satisfactory to the Agent, and its counselaccordance with their terms.
(e) The Agent shall have received:
(i) each document (includingPayment of fees, without limitationcosts, any PPSA or other financing statement) and expenses incurred as required by the Security Documents Section 8.8 or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinaboveotherwise herein.
(f) No Material Adverse Effect shall have occurred since September 30All required statements, 2021affidavits and financing documents.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in Affidavit that Borrower has not had any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment material adverse financial change since submission of the Agent, would reasonably be expected its financials to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or therebyBank.
(h) Each Loan Party shall have established Blocked Account Agreements Affidavit that Borrower is not involved in respect any material litigation as of its deposit accounts for collections date of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29closing.
(i) Each Loan Party shall The Security Interests defined herein have used its reasonable commercial efforts to obtain been filed and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral perfected as First Priority liens on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth security described in the Fee LetterSecurity Agreement in Pennsylvania, New York, Delaware, Virginia and Maryland.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Conditions of Lending. 8.1 Conditions Precedent The obligation of the Lender to Making make Term Loan hereunder is subject to the performance by the Borrower of Revolving Loans its obligations to be performed hereunder at or prior to the making of the Term Loan and Issuing Letters to the satisfaction of Credit on the Effective Date.following further conditions:
5.01 At the time of the making of the Term Loan:
(a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All The representations and warranties made hereunder and of the Borrower contained in the other Loan Documents Article IV hereof shall be true and correct in all material respects as if made accurate on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c) No date; no Event of Default and no condition, event or action which, with the giving of notice or the lapse of time or both, would constitute an Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Dateor shall exist.
(db) The Agent and following corporate information shall be delivered by the Lenders Borrower, which shall have received such customary opinions of counsel for the Loan Parties as the Agent or any be acceptable to Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counsel.
(e) The Agent shall have receivedsole discretion:
(i) each document (including, without limitation, any PPSA or other financing statement) required copies of the articles of incorporation of the Borrower certified by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour Secretary of State of the AgentState of New York as of a date reasonably near the Closing Date and accompanied by a certificate from an appropriate officer of Borrower stating that the copy is complete and that the articles of incorporation have not been amended, for annulled, rescinded or revoked since the benefit date of the Agent and certificate of the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordationSecretary of State;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements a copy of Law) authorized for filing by the appropriate Person and such other instruments, bylaws of Borrower in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens effect on the assets Closing Date, accompanied by a certificate from an appropriate officer of Borrower stating that the copy is true and property complete and that the bylaws have not been amended, annulled, rescinded or revoked since the date of the Loan Partiesbylaws or the last amendment reflected in the copy, except Permitted Liens; andif any;
(iii) the results a copy of a search of tax and other Liens, and judgments and resolutions of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) Borrower authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it Borrower is a partyparty and specifying the officer of Borrower authorized to execute the Loan Documents, accompanied by a certificate from an appropriate officer of Borrower stating that the resolutions are true and complete, were duly adopted at a properly called meeting at which a quorum was present and acting throughout, or were duly adopted by appropriate written action, and that such resolution has have not been modifiedamended, annulled, rescinded or amended revoked in any respect and is remain in full force and effecteffect on the date of the certificate;
(iv) an incumbency certificate containing the names, titles and genuine signatures of all duly elected officers of Borrower who are authorized to execute any of the Loan Documents or any other documents or instruments to be executed and delivered to the Lender in connection herewith, accompanied by a certificate from an appropriate officer of Borrower stating that the information is true and complete;
(Dc) that such Loan Party’s certificate or The following corporate information shall be delivered by Trans Air, which shall be acceptable to Lender in its sole discretion:
(i) copies of the articles of incorporation or other constitutive documents of Trans Air certified by the Secretary of State of the State of Florida as of a date reasonably near the Closing Date and accompanied by a certificate from an appropriate officer of Trans Air stating that the copy is complete and that the articles of incorporation have not been amended amended, annulled, rescinded or revoked since the date of the last amendment thereto shown certificate of the Secretary of State;
(ii) a copy of the bylaws of Trans Air in effect on the certificate of good standing furnished hereinaboveClosing Date, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date accompanied by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer an appropriate officer of Trans Air stating that the copy is true and complete and that the bylaws have not been amended, annulled, rescinded or revoked since the date of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans bylaws or the issuance of such Letters of Credit have been satisfiedlast amendment reflected in the copy, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and if any;
(iii) all documents sent to such Lender for approvala copy of resolutions of the Board of Directors of Trans Air authorizing the execution, consent or satisfaction were acceptable to such Lender.delivery and performance of the Loan
Appears in 1 contract
Conditions of Lending. 8.1 10.1 Conditions Precedent to Making Loans on the Closing Date. The obligation of the Lenders to make the initial Revolving Loans on the Closing Date and Issuing Letters the obligation of the Agent to cause to be issued or provide Credit Support for any Letter of Credit on the Effective Date.Closing Date and the obligation of the Lenders to participate in Letters of Credit issued on the Closing Date or in Credit Support for any Letters of Credit, are subject to the following conditions precedent having been satisfied in a manner satisfactory to the Agent and each Lender:
(a1) This Agreement and the other Loan Documents shall have been executed by each party thereto (including, without limitation, if requested by 101 the BorrowersAgent, amendments, in form and substance reasonably satisfactory to the Agent, to Credit Documents (as defined in the Existing Credit Agreement) assigned to BABC or the Agent pursuant to the Bank Assignment Agreement) and the Lenders party hereto on the Effective Date Borrower and each Loan Party Parent shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party the Borrower or Parent before or on the Effective such Closing Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b2) Upon making the Revolving Loans on the Closing Date (including such Revolving Loans made to finance the Closing Fee or otherwise pursuant to Section 4.7 as reimbursement for fees, costs and expenses then payable under this Agreement) and with all its obligations current and after giving effect to the effectiveness of the assignments and transfers contemplated by the Bank Assignment Agreement, the Borrower would have Availability in an amount no less than $13,500,000.
(3) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as of the Closing Date as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c4) No Default or Event of Default shall have occurred and be continuing exist on the Closing Date, or would exist immediately after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Datesuch date.
(d5) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties Parent and its Subsidiaries as the Agent or any Lender shall reasonably request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and its their respective counsel.
(e6) The Agent shall have received evidence reasonably satisfactory to it that (i) Receivables Corp. shall have transferred to the Borrower all of its assets (including in any event all accounts receivable and cash) other than immaterial assets and terminated any and all present and future receivables transfers by the Borrower to Receivables Corp., in each instance, on terms and conditions and pursuant to agreements satisfactory to the Agent and (ii) the receivables securitization facility entered into by Receivables Corp. shall have been terminated on terms and conditions satisfactory to the Agent.
(7) The Agent shall have received:
(i1) each document (including, without limitation, any PPSA acknowledgment copies of proper financing statements duly filed on or other financing statement) required by before the Security Documents or any other Loan Document or reasonably requested by Closing Date under the UCC of all jurisdictions that the Agent to be filed, registered may deem necessary or recorded desirable in order to create in favour of perfect the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;'s Lien.
(ii2) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person duly executed UCC-3 Termination Statements and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of Parent and its Subsidiaries (including, without limitation, UCC-3 Termination Statements terminating all UCC filings made under the Loan Partiesreceivables transfer and receivables securitization facilities referred to in clause (f) above), except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f3) No Material Adverse Effect the Bank Assignment Agreement duly executed and delivered by all the parties thereto and all conditions to the effectiveness of the assignments and transfers contemplated thereby (other than the payment of any monies by BABC under Section 3(a)(i) thereof and the return to the agent under the Existing Credit Agreement of the BT Letter of Credit (as defined in the Bank Assignment Agreement)) shall have occurred since September 30, 2021been satisfied.
(g4) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable duly executed acknowledgment and agreement to the Agent and shall cause all proceeds of Accounts to be deposited thereinIntercreditor Agreement, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, acknowledging the Agent may establish a reserve against as the Borrowing Base equal to "Credit Agent" under and as defined in the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of ReservesIntercreditor Agreement.
(j) 8) The Loan Parties Borrower shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent and the Attorney Costs reasonably incurred by the Agent in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letterthereby.
(k9) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement the Agreement.
(including10) The Agent and the Lenders shall have had an opportunity, if they so choose, to examine the books of account and other records and files of Parent and its Subsidiaries and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Availability, and the certificates results of insurance such examination and other documents required by Section 7.5)audit shall have been satisfactory to the Agent and the Lenders in all respects.
(l11) The Borrowers All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall have delivered a Borrowing Base Certificate (be satisfactory in form, scope, and supporting information) substance to the Agent in form and scope satisfactory to the AgentLenders.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o12) The Agent shall have received a certificate of an Responsible Officer of each certified copies of the Loan PartiesSenior Secured Notes, on behalf of the Loan Parties Senior Subordinated Notes, the Intercreditor Agreement, the Asset Transfer Documents and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational all documents, in each case amended to date, of such Loan Party, (B) that attached instruments and agreements entered into pursuant thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers Borrower of any Revolving Loans made or any Letters of Credit issued on the Effective Closing Date shall be deemed to be a representation and warranty made by the Borrowers Borrower to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the BorrowersBorrower, dated the Effective Closing Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 10.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, Lender and (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender10.1.
Appears in 1 contract
Sources: Loan and Security Agreement (Sweetheart Holdings Inc \De\)
Conditions of Lending. 8.1 Conditions Precedent to Making of Loans on the Closing Date. The ----------------------------------------------------------- obligation of the Lenders to make the initial Revolving Loans on the Closing Date, and Issuing Letters the obligation of the Agent to cause the Letter of Credit Issuer to issue any Letter of Credit on the Effective Closing Date, are subject to the following conditions precedent having been satisfied in a manner satisfactory to the Agent and each Lender (other than each item, if any, listed on Schedule 8.1, which items are hereby permitted to be delivered after the Closing Date but not later than the respective date for delivery of each such item specified on Schedule 8.1 or such later date as agreed to by the Agent).
(a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent each party thereto and the Lenders party hereto on the Effective Date and each Loan Party Borrower shall have performed and complied with all covenants, agreements agreements, and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party the Borrower before or on the Effective such Closing Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) Upon making the Revolving Loans (including such Revolving Loans made to finance the Closing Fees or otherwise as reimbursement for fees, costs and expenses then payable under this Agreement) and with all its obligations current, the Borrower shall have Availability of at least $30,000,000.
(c) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified datescorrect.
(cd) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter the Letters of Credit to be issued on the Effective Closing Date.
(de) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, Agent and its counsel.
(ef) The Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and statements in proper form for filing, registration filing under the UCC in all jurisdictions that the Agent may deem necessary or recordation;desirable in order to perfect the Agent's Liens; and
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person duly executed UCC-3 Termination Statements and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property Property of the Loan Parties, Companies except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There The Borrower shall exist no actionhave paid all fees, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in including the reasonable judgment amounts owing of the AgentClosing Date under the Fee Letter, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any and expenses of the other Loan Documents Agent and all Attorney Costs to the extent invoiced (which invoice may be an estimate) prior to or any on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the transactions contemplated hereby or therebyclosing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrower and the Agent).
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement Agreement.
(includingi) The Agent and the Lenders shall have had an opportunity, if they so choose, to examine the books of account and other records and files of the Companies and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and the certificates Borrowing Base, and the results of insurance such examination and audit shall have been satisfactory to the Agent and the Lenders in all respects.
(j) All proceedings taken in connection with the execution of this Agreement, the Notes, all other Loan Documents, and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent and the Lenders.
(k) Without limiting the generality of the items described above, each Loan Party shall have delivered or caused to be delivered to the Agent (in form and substance reasonably satisfactory to the Agent), the financial statements, instruments, resolutions, documents, agreements, certificates, opinions and other documents required items set forth on the "Closing Checklist" delivered by Section 7.5)the Agent to the Borrower prior to the Closing Date.
(l) The Borrowers No material adverse change, in the opinion of the Agent, shall have delivered a Borrowing Base Certificate (and supporting information) to occurred in the Agent in form and scope satisfactory to assets, liabilities, business, financial condition, business prospects, or results of operations of the AgentCompanies.
(m) The Borrowers Evidence that the Existing Agreement has been or concurrently with the Closing Date is being terminated and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities all Liens securing obligations under the applicable “know your customer” rules and regulations and policies, including Existing Agreement have been or concurrently with the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such dateClosing Date are being released.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with Confirmation from the terms holders of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to Subordinated Debt that the Agent. The Agent shall have received (i) copies of each of Obligations constitute "Senior Debt" under the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of documents evidencing the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c)Subordinated Debt. The acceptance by the Borrowers Borrower of any Revolving Loans made or any Letters of Credit issued on the Effective Closing Date shall be deemed to be a representation and warranty made by the Borrowers Borrower to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfiedsatisfied or waived, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the BorrowersBorrower, dated the Effective Closing Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approvalapproval consent, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Credit Agreement (Coorstek Inc)
Conditions of Lending. 8.1 56.1 Conditions Precedent to Making the Initial Advances and Letter of Revolving Loans and Issuing Credit. The Lender’s obligation to make the initial Advances or to cause any Letters of Credit on to be issued shall be subject to the Effective Date.condition precedent that the Lender shall have received all of the following, each in form and substance satisfactory to the Lender:
(a) This Agreement and the other Loan Documents shall have been Agreement, properly executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security DocumentBorrower.
(b) All representations and warranties made hereunder and in The Notes, properly executed by the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified datesBorrower.
(c) No Default A certificate of an officer of the Borrower certifying (A) that true and accurate copies of the Acquisition Documents, including all amendments thereof, supplements thereto and documents or Event of Default shall instruments delivered in connection therewith, have occurred and be continuing after giving effect been furnished to the Revolving Loans Lender, and (B) that the foregoing, in the respective forms certified to be made the Lender, remain in full force and any Letter of Credit to be issued on the Effective Dateeffect without supplement, amendment or other modification.
(d) The Agent To the extent not provided in satisfactory form under the Prior Credit Agreement, a true and correct copy of any and all leases pursuant to which the Lenders shall have received such customary opinions of counsel for Borrower is leasing the Loan Parties as the Agent or any Lender shall requestPremises, together with a landlord’s disclaimer and consent with respect to each such opinion to be lease in a form, scope, and substance reasonably satisfactory to form prescribed by the Agent, and its counselLender.
(e) The Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by To the Security Documents or any other Loan Document or reasonably requested by extent not provided in satisfactory form under the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the LendersPrior Credit Agreement, a perfected Lien on the Collateral, prior true and superior in right to correct copy of any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made mortgages pursuant to other Requirement of Law or statutes to perfect or render opposable which the Borrower has mortgaged the Premises, together with a security interest or Lien on the Collateral or any part thereof made mortgagee’s disclaimer and consent with respect to each of such mortgage in a form prescribed by the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinaboveLender.
(f) No Material Adverse Effect shall have occurred since September 30To the extent not provided in satisfactory form under the Prior Credit Agreement, 2021a true and correct copy of any and all agreements pursuant to which the Borrower’s property is in the possession of any Person other than the Borrower, together with, in the case of any goods held by such Person for resale, (i) a consignee’s acknowledgment and waiver of Liens, (ii) UCC financing statements sufficient to protect the Borrower’s and the Lender’s interests in such goods, and (iii) UCC searches showing that no other secured party has filed a financing statement against such Person and covering property similar to the Borrower’s other than the Borrower, or if there exists any such secured party, evidence that each such secured party has received notice from the Borrower and the Lender sufficient to protect the Borrower’s and the Lender’s interests in the Borrower’s goods from any claim by such secured party.
(g) There shall exist no actionTo the extent not provided in satisfactory form under the Prior Credit Agreement, suit, investigation, litigation or proceeding pending or threatened an acknowledgment and waiver of Liens from each warehouse in any court or before any arbitrator or governmental instrumentality that, in which the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or therebyBorrower is storing Inventory.
(h) Each Loan Party shall have established Blocked Account Agreements To the extent not provided in respect satisfactory form under the Prior Credit Agreement, a true and correct copy of its deposit accounts for collections any and all agreements pursuant to which the Borrower’s property is in the possession of Accounts at any Person other than the Borrower, together with, (i) an acknowledgment and waiver of Liens from each subcontractor who has possession of the Borrower’s goods from time to time, (ii) UCC financing statements sufficient to protect the Borrower’s and the Lender’s interests in such goods, and (iii) UCC searches showing that no other secured party has filed a Clearing Bank reasonably acceptable financing statement covering such Person’s property other than the Borrower, or if there exists any such secured party, evidence that each such secured party has received notice from the Borrower and the Lender sufficient to protect the Agent Borrower’s and shall cause all proceeds of Accounts to be deposited therein, the Lender’s interests in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then Borrower’s goods from any claim by such items may be delivered in accordance with Section 7.29secured party.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain The Lockbox and deliver to Collection Account Agreement, properly executed by the Agent landlord waivers Borrower and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of ReservesW▇▇▇▇ Fargo Bank Nebraska.
(j) The Loan Parties shall have paid Control agreements, properly executed by the Borrower and each bank at which the Borrower maintains deposit accounts.
(k) Current searches of appropriate filing offices showing that (i) all fees no Liens have been filed and expenses (including Attorney Costs) remain in effect against the Borrower or UAHC except Permitted Liens or Liens held by Persons who have agreed in writing that upon receipt of proceeds of the Agent incurred initial Advances, they will satisfy, release or terminate such Liens in connection with any of a manner satisfactory to the Loan Documents and the transactions contemplated thereby prior to such dateLender, and (ii) the Lender has duly filed all fees and expenses as set forth in financing statements necessary to perfect the Fee Letter.
(k) The Agent shall have received evidenceSecurity Interest, in form, scope, and substance, reasonably satisfactory to the Agent, extent the Security Interest is capable of all insurance coverage as required being perfected by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5)filing.
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each A certificate of the Guarantors shall have provided the documentation and other information to the Lenders Borrower’s Secretary or Assistant Secretary (or equivalent officer) certifying that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior attached to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received certificate are (i) copies of each the resolutions of the Loan Documents and schedules theretoBorrower’s Directors and, and (ii) evidence that all consentsif required, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan PartiesOwners, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effectDocuments, (Dii) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date true, correct and complete copies of the last amendment thereto shown on the certificate of good standing furnished hereinaboveBorrower’s Constituent Documents, and (Eiii) as examples of the signatures of the Borrower’s Officers or agents authorized to execute and deliver the incumbency Loan Documents and specimen signature other instruments, agreements and certificates, including Advance requests, on the Borrower’s behalf.
(m) A current good standing certificate for the Borrower from its jurisdiction of each organization.
(n) Evidence that the Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such Loan Party’s officers executing this Agreement licensing or any other Loan Document delivered in connection herewith or therewith, as applicable; and a qualification necessary.
(o) A certificate of another of such Loan Party’s Officers as to the incumbency and signature an Officer of the officer signing such certificate.Borrower confirming, in his personal capacity, the representations and warranties set forth in Article V.
(p) The Agent shall have received certificates An opinion of statuscounsel to the Borrower, certificates of good standing, existence or its equivalent with respect addressed to each Loan Party certified as of the Lender and covering matters and otherwise in a recent date by form acceptable to the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its businessLender.
(q) Certificates of the insurance required hereunder, with all hazard insurance containing a lender’s loss payable endorsement in the Lender’s favor and with all liability insurance naming the Lender as an additional insured.
(r) Payment of the fees and commissions due under Section 2.13 through the date of the initial Advance or Letter of Credit and expenses incurred by the Lender through such date and required to be paid by the Borrower under Section 8.6, including all legal expenses incurred through the date of this Agreement.
(s) Evidence that after making the initial Revolving Advance and after giving effect to the Acquisition, satisfying all trade payables older than 60 days from invoice date, book overdrafts and closing costs, Availability shall be not less than $2,000,000.
(t) An initial Borrowing Base Certificate showing the Borrower’s good faith estimate of the Borrowing Base as of the Funding Date.
(u) An appraisal of the Mortgaged Premises performed by an appraiser satisfactory to the Lender in form and substance satisfactory to the Lender.
(v) An as-built survey of the Mortgaged Premises in form and substance satisfactory to the Lender.
(w) Amendment No. 1 to the Medallion Subordination Agreement in form and substance satisfactory to the Lender, properly executed by the parties thereto.
(x) Phase I and Phase II environmental site assessments of the real estate described in the Mortgage, together with reliance letters in favor of the Lender, each in form and substance acceptable to the Lender;
(y) The Agent Seller Subordination Agreement in form and substance satisfactory to the Lender, properly executed by the parties thereto;
(z) The Lender shall have confirmed that the Borrower shall have received a certificate from a Responsible Officer the proceeds of an additional equity contribution in the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were amount acceptable to such LenderLender from its management; and
(aa) Such other documents as the Lender in its sole discretion may require.
Appears in 1 contract
Conditions of Lending. 8.1 Conditions Precedent The obligations of the Lenders to Making make Loans are subject to the satisfaction of Revolving Loans and Issuing Letters of Credit on the Effective Date.following conditions:
(a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the The Agent shall have received from (i) each party hereto (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence reasonably requested satisfactory to ensure that the Agent shall have (which may include a perfected security interest facsimile or other electronic imaging transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and Lien in (ii) each party to the Collateral Intercreditor Agreement (A) a counterpart of the type and priority described in each applicable Security DocumentIntercreditor Agreement signed on behalf of such party or (B) written evidence reasonably satisfactory to the Agent (which may include a facsimile or other electronic imaging transmission of a signed signature page of the Intercreditor Agreement) that such party has signed a counterpart of the Intercreditor Agreement.
(b) All The representations and warranties made hereunder set forth in Article III and in the each other Loan Documents Document shall be true and correct in all material respects on and as if of the date of the Effective Date with the same effect as though made on and as of such date date, except for to the extent such representations and warranties made as of a specified expressly relate to an earlier date, which shall be true and correct on all material respects as of such specified dates.
(c) No At the time of and immediately after the making of the Loans, no Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Datecontinuing.
(d) The Agent shall have received written opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel for Holdings and the Borrower, substantially to the effect set forth in Exhibit G, in each case (A) dated the Effective Date and (B) addressed to the Agent and the Lenders.
(e) All legal matters incidental to this Agreement, the Borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Lenders and to the Agent.
(f) The Agent shall have received such customary opinions of counsel for the Loan Parties documents and certificates as the Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Transactions and any Lender shall requestother legal matters relating to the Loan Parties, each such opinion to be the Loan Documents or the Transactions, all in a form, scope, form and substance reasonably satisfactory to the Agent, Agent and its counsel.
(eg) The Agent shall have received:received a certificate, dated the Effective Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b), (c), (i), (n), (o) and (s) of this Article.
(h) The Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(i) The Collateral and Guarantee Requirement shall have been satisfied and the Agent shall have received a completed Perfection Certificate dated the Effective Date and signed by an executive officer or Financial Officer of the Borrower, together with all attachments contemplated thereby, including the results of searches of (A) Uniform Commercial Code financing statements on file with the Secretary of State of the State of Delaware in the case of Holdings and the Borrower and with the Secretary of State of the State of New York in the case of the Parent and (B) real estate filings and Uniform Commercial Code financing statements on file with the various recording districts of the State of Alaska in which the Mortgaged Properties are situated, copies of such financing statements and real estate filings disclosed by such searches and evidence reasonably satisfactory to the Agent that the Liens indicated by such financing statements and real estate filings are permitted by Section 6.02 or have been or will be simultaneously released or terminated.
(j) Except for approvals identified in the Parent Undertaking as to be obtained after the Effective Date, the Agent shall have received evidence that the Borrower and each document applicable Subsidiary is qualified to own oil, gas and mineral leases and/or rights-of-way on Federal public lands and State lands in the State of Alaska, in accordance with all applicable laws, rules, regulations and orders of the Federal Bureau of Land Management and all applicable Governmental Authorities of the State of Alaska (includingincluding the Division of Oil and Gas within the State of Alaska Department of Natural Resources).
(k) The Agent shall have received a copy of, without limitationor a certificate as to coverage under, any PPSA or other financing statement) the insurance policies required by the Security Documents Section 5.02, each of which shall be endorsed or any other Loan Document or reasonably requested by otherwise amended to include a customary lender’s loss payable endorsement and to name the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instrumentsas additional insured, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(fl) No Material Adverse Effect The Intercompany Services Agreement, the Tax Sharing Agreements and the Parent Undertaking shall have occurred since September 30, 2021be in full force and effect in the form certified by a Responsible Officer.
(gm) There The Agent shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment have received a final version of the AgentEnvironmental and Safety Audit dated as of February 23-26, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any 2006 prepared by the Parent and the related Status Report dated as of the other Loan Documents or any of the transactions contemplated hereby or therebyJune 8, 2006.
(hn) Each Loan Party The Hedging Agreements set forth on Schedule 1.01(a) shall be in full force and effect and shall have established Blocked Account Agreements the effect of establishing minimum fixed prices or floors on a notional volume of crude oil and natural gas, calculated separately, equal to approximately 75% of Anticipated Production thereof that is not subject to fixed price contracts for each month in respect the period through and including the third anniversary of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable the Effective Date.
(o) Immediately after giving effect to the Agent and shall cause all proceeds of Accounts Transactions to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered occur on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29Holdings, the Borrower and the Subsidiaries shall have outstanding no Indebtedness or preferred Equity Interests other than (a) Indebtedness outstanding under this Agreement, (b) Indebtedness outstanding under the First Lien Credit Agreement, (c) Indebtedness set forth on Schedule 6.01 and (d) Hedging Agreements set forth on Schedule 1.01.
(ip) Each Loan Party The Lenders shall have used received the financial statements referred to in Section 3.05, none of which shall demonstrate a material adverse change in the financial condition of Holdings and its reasonable commercial efforts to obtain subsidiaries from (and deliver shall not otherwise be materially inconsistent with) the financial statements or forecasts previously provided to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of Lenders in the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of ReservesConfidential Information Memorandum.
(jq) The Loan Parties Lenders shall have paid (i) all fees and expenses (including Attorney Costs) of received the Agent incurred Reserve Report referred to in connection with any of the Loan Documents and the transactions contemplated thereby prior to such dateSection 3.05, and (ii) all fees and expenses as set forth in such Reserve Report shall not be materially inconsistent with the Fee Letterversions thereof previously provided to the Lenders.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(or) The Agent shall have received a solvency certificate of an Responsible from a Financial Officer of each Holdings, substantially in the form set forth on Exhibit H, confirming the solvency of Holdings and its subsidiaries on a consolidated basis after giving the Transactions to occur on the Effective Date.
(s) Except for approvals identified in the Parent Undertaking as to be obtained after the Effective Date, all material requisite Governmental Authorities and third parties shall have approved or consented to the transfer of the Loan PartiesBusiness to the Borrower and the Subsidiaries, the Transactions and the other transactions contemplated hereby to the extent required, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that could reasonably be expected to restrain, prevent or impose burdensome conditions on behalf the Transactions or the other transactions contemplated hereby.
(t) The Lenders shall have received, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. The making of the Loan Parties Loans shall be deemed to constitute a representation and not in any personal capacity warranty by Holdings and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect Borrower on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying their making as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent specified in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderArticle.
Appears in 1 contract
Conditions of Lending. 8.1 Conditions Precedent The obligation of each Lender to Making of Revolving fund the Loans and Issuing Letters of Credit on the Effective Date.Closing Date hereunder is subject to satisfaction of the following conditions precedent:
(a) This The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party to the extent such Loan Party is a party thereto, each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement (including all of the Lenders party hereto);
(ii) an Initial Loan Note executed by Borrower in favor of each Lender that has requested an Initial Loan Note more than three (3) Business Days prior to the Closing Date;
(iii) except where delivery after the Closing Date is contemplated therein, each Security Document set forth on Schedule 4.01(a)(iii) hereto, duly executed by each Loan Party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied, if applicable, by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, and
(B) where appropriate and customary in each relevant jurisdiction where the Guarantors are organized, evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement (and as have been notified to Borrower or its counsel no later than three (3) Business Days prior to the Closing Date) shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require (and as have been notified to Borrower no later than three (3) Business Days before the Closing Date) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents shall have been to which such Loan Party is a party or is to be a party on the Closing Date;
(A) the executed by legal opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special U.S. counsel to the BorrowersCompany and certain other Loan Parties, substantially in the Agent and form of Exhibit H; and
(B) the executed legal opinion of local counsel to the Lenders party hereto on or the Effective Date and each Loan Party shall have performed and complied with all covenantsParties, agreements and conditions contained herein and as applicable, in the other jurisdictions listed on Schedule 4.01(a)(v)(B), in form and substance reasonably satisfactory to the Administrative Agent;
(C) a certificate signed by a Company Financial Officer certifying that since the date of the Acquisition Agreement there has been no Material Adverse Change;
(vi) a certificate signed by a Company Financial Officer attesting to the Solvency of the Loan Documents which are Parties (taken as a whole) after giving effect to the Transactions, from;
(vii) except as contemplated by Section 6.14(a) of the Senior Secured Credit Facilities, evidence that all insurance (including title insurance) required to be performed or complied maintained pursuant to the Loan Documents has been obtained and is in effect and that the Collateral Agent has been named as loss payee, mortgagee and additional insured under each insurance policy with by respect to such Loan Party before or on insurance as to which the Effective Date. In particular, all actions shall have been taken as the Collateral Agent shall have reasonably requested to ensure that be so named;
(viii) a Borrowing Request relating to the Agent shall have Borrowings made on the Closing Date; and
(ix) the Intercreditor Agreement, executed and delivered by a perfected security interest duly authorized officer of the applicable Loan Parties and Lien in of the Collateral of the type Agent and priority described in each applicable Security Document.other agents party thereto;
(b) All prior to or substantially simultaneously with the Loans made on the Closing Date, arrangements reasonably satisfactory to the Joint Lead Arrangers shall have been made to pay all fees and expenses (to the extent invoices for such expenses have been provided at least five (5) Business Days prior to the Closing Date) required to be paid hereunder by the Company or Borrower from the Borrowings made on the Closing Date;
(c) prior to or substantially simultaneously with the Initial Loans made on the Closing Date, the Acquisition shall have been consummated in accordance with the terms of the Acquisition Agreement except for the filing of the merger certificate which shall occur substantially concurrently, without giving effect to any amendments or waivers thereto (excluding any waiver by Lyondell of the conditions set forth in Section 6.3(a)(i) of the Acquisition Agreement) that are materially adverse to the Lenders made without reasonable consent of the Joint Lead Arrangers (such consent not to be unreasonably withheld or delayed), and in compliance with applicable material Laws and regulatory approvals;
(d) all of the conditions precedent included in Article IV of the Senior Secured Credit Facilities have been satisfied or waived and the Senior Secured Credit Facilities remain in full force and effect;
(e) the Company and its subsidiaries shall have outstanding no Financial Indebtedness or Disqualified Equity Interests other than (A) the Initial Loan, (B) the loans under the Senior Secured Credit Facilities, (C) the Existing Notes, (D) Existing Indebtedness (including letters of credit issued and outstanding on the Closing Date), and (E) the Asset Backed Credit Facility, Receivables Financing and Securitization Transactions and (F) liabilities incurred in the ordinary course of business and (G) liabilities disclosed in the Pro Forma Financial Statements, in each case to the extent permitted by Section 5.08;
(f) the Administrative Agent shall have received all documentation and other information mutually agreed to be required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(g) The representations and warranties made hereunder of Borrower and in the each other Loan Documents Party contained in Article 3 or any other Loan Document shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Closing Date.
(d) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counsel.
(e) The Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party No Default shall have established Blocked Account Agreements in respect exist or would result from such proposed Borrowing or from the application of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29therefrom.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Administrative Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not Borrowing Request in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, accordance with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderrequirements hereof.
Appears in 1 contract
Conditions of Lending. 8.1 Conditions Precedent to Making of Revolving Loans and Issuing Letters of Credit on the Effective Date.
(a) This The obligation of Lender to make the Initial Disbursement is subject to the conditions precedent that:
(i) an order of the Bankruptcy Court shall have been entered confirming the Plan of Reorganization of Triangle Petroleum Corporation filed at Docket No. 8 in Case No. 11025-MFW in the United States Bankruptcy Court of Delaware, as such Plan of Reorganization may be amended with the consent of Lender (the “Plan”), which order of court shall be in full force and effect and shall not have been reversed, modified, amended, subject to pending appeal, stayed or vacated, and the Effective Date (as defined in the Plan) shall have occurred;
(ii) Lender shall have received:
(A) a counterpart of this Agreement and the other Pledge and Security Agreement duly executed by Borrower;
(B) the Guaranty and Pledge Agreement duly executed by Triangle Real Estate Properties, LLC (“Real Estate”) and Triangle Caliber Holdings, LLC (“Caliber”); Section 4 hereof);
(C) the Borrowing Request (delivered in accordance with (D) a resolution certified by Borrower’s Secretary or Assistant Secretary authorizing the transactions contemplated under the Term Loan Documents, including an incumbency certificate of Borrower’s Secretary or Assistant Secretary setting forth the names, titles and true signatures of Borrower’s officers authorized to sign the Term Loan Documents shall have been executed to which it is party and attaching copies of Borrower’s articles of incorporation and by-laws;
(E) for each of Real Estate and Caliber, a resolution certified by the BorrowersSecretary or Assistant Secretary authorizing the transactions contemplated under the Term Loan Documents, including an incumbency certificate of each such Secretary or Assistant Secretary setting forth the Agent names, titles and true signatures of each of their officers authorized to sign the Lenders Term Loan Documents to which it is party hereto on the Effective Date and attaching, in each Loan Party shall have performed case, copies of its articles of formation and complied with all covenants, agreements and conditions contained herein and operating agreement;
(F) [reserved];
(G) an opinion of counsel to Borrower substantially in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on form of Exhibit B hereto;
(H) the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have results of a perfected security interest and Lien recent lien search in the Collateral each of the type jurisdictions of organization of the Borrower, Real Estate and priority described in each applicable Security Document.Caliber are located, and such search shall be reasonably acceptable to the Lender;
(bI) All good standing certificate for each of Borrower, Real Estate and Caliber from its jurisdiction of organization; and
(J) payment of any fees and expenses which may be netted from the proceeds of the Term Loans;
(iii) (A) the representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which Borrower set forth herein shall be true and correct on all material respects and as of such specified dates.
the Closing Date; and (cB) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made Closing Date Transactions, no default or Event of Default under the Term Loan Documents has occurred and any Letter of Credit to be issued on the Effective Dateis continuing.
(db) The Agent and obligation of Lender to make a Disbursement of Term Loans other than the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion Initial Disbursement to be in a form, scope, and substance reasonably satisfactory Borrower is subject to the Agent, and its counsel.
(e) The Agent shall have receivedconditions precedent that:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, Lender shall have received a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;Borrowing Request; and
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a the representations and warranties of Borrower set forth herein shall be true and complete copy correct on and as of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or Disbursement; and (B) at the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer time of the Borrowersrequest for such Disbursement, dated no default or Event of Default under the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution Term Loan Documents has occurred and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderis continuing.
Appears in 1 contract
Sources: Exit Facility Credit Agreement
Conditions of Lending. 8.1 Section 4.1 Conditions Precedent to Making the Initial Revolving Advance and Letter of Revolving Loans and Issuing Credit. The Lender's obligation to make the initial Advance hereunder or to cause any Letters of Credit on to be issued shall be subject to the Effective Date.condition precedent that the Lender shall have received all of the following, each in form and substance satisfactory to the Lender:
(a) This Agreement and the other Loan Documents shall have been Agreement, properly executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security DocumentBorrower.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified dateThe Note, which shall be true and correct on all material respects as of such specified datesproperly executed by each Borrower.
(c) No Default or Event A true and correct copy of Default shall have occurred the leases for the Premises located in Elgin, Illinois; Mesquite, Texas; Missouri City, Texas; and be continuing after giving effect Oklahoma City, Oklahoma; together with a landlord's disclaimer and consent with respect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Dateeach such lease.
(d) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall requestCollection Account Agreement, properly executed by each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counselBorrower.
(e) The Agent shall have received:
Current searches of appropriate filing offices showing that (i) each document (including, without limitation, no Liens have been filed and remain in effect against any PPSA Borrower except Permitted Liens or other financing statement) required Liens held by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded Persons who have agreed in order to create in favour writing that upon receipt of proceeds of the Agentinitial Advances, for they will satisfy, release or terminate such Liens in a manner satisfactory to the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens)Lender, and in proper form for filing, registration or recordation;
(ii) estoppel documentationthe Lender has duly filed all financing statements necessary to perfect the Security Interest, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on extent the assets and property Security Interest is capable of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabovebeing perfected by filing.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen A certificate of each of the premises leased by Borrower's Secretary or Assistant Secretary certifying that attached to such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements certificate are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) resolutions of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such dateBorrower's Directors and, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidenceif required, in formOwners, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement the Loan Documents, (ii) true, correct and complete copies of the Borrower's Constituent Documents, and (iii) examples of the signatures of the Borrower's Officers or agents authorized to execute and deliver the Loan Documents and other instruments, agreements and certificates, including Advance requests, on that Borrower's behalf.
(g) For each Borrower, a current certificate issued by the Secretary of State of that Borrower's jurisdiction of organization, certifying that Borrower is in compliance with all applicable organizational requirements of such State.
(h) Evidence that each Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary.
(i) An opinion of counsel to the Borrowers and the other Loan Documents Guarantor, addressed to which it is the Lender.
(j) Certificates of the insurance required hereunder, with all hazard insurance containing a party, lender's loss payable endorsement in the Lender's favor and that such resolution has not been modified, rescinded or with all liability insurance naming the Lender as an additional insured.
(k) An amended and is in full force restated guaranty, properly executed by TLF Canada.
(l) A certificate of the secretary or assistant secretary of TLF Canada certifying as to (i) the resolutions of the Directors and, if required, Owners, of that company authorizing the execution, delivery and effect, performance of the guaranty and the security agreement executed and delivered to the Lender by it; (Dii) that such Loan Party’s certificate or the company's articles of incorporation and bylaws; and (iii) the signatures of the Officers or other constitutive documents agents authorized to execute and deliver such guaranty and security agreement on behalf of such company.
(m) Current searches of appropriate filing offices showing that (i) no tax or judgment liens have not been filed and remain in effect against TLF Canada, (ii) no financing statements have been filed and remain in effect against such company except financing statements acceptable to the Lender in its sole discretion, and (iii) the Lender has duly filed all financing statements necessary to perfect its security interest in the property of such company, to the extent such security interests are capable of being perfected by filing.
(n) An amended since and restated security agreement, duly executed by TLF Canada.
(o) Payment of the fees and commissions due under Section 2.10 through the date of the last amendment thereto shown on initial Advance or Letter of Credit and expenses incurred by the certificate Lender through such date and required to be paid by the Borrowers under Section 8.8, including all legal expenses incurred through the date of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificateAgreement.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or Such other documents as the Lender in its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its businesssole discretion may require.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Credit and Security Agreement (Leather Factory Inc)
Conditions of Lending. 8.1 Conditions Precedent Borrower shall not be entitled to Making of Revolving Loans and Issuing request that Bank advance funds pursuant to the Credit Line or to issue Letters of Credit on the Effective Date.
(a) This Agreement and the other Loan Documents unless Bank shall have been executed by determined in its discretion, that Borrower has satisfied the Borrowersfollowing conditions precedent, which together may be called the Agent and Conditions of Lending:
10.1 That the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenantsstatements, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made hereunder of the Borrower contained herein are and continue to be true in the all material respects, other Loan Documents shall be than representations and warranties which expressly pertain to a specific date and which are no longer true and correct in all material respects as if made on due to determination of such date except for such representations representation and warranties made warranty as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c) No or for another date or period; that no Default or Event of Default shall have has occurred and be continuing after giving effect to the Revolving Loans to be made is continuing; and any that each request for an Loan or for issuance of a Letter of Credit to be issued on the Effective Date.
(d) The Agent shall constitute and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counsel.
(e) The Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender Bank as to the satisfaction accuracy and completeness in all material respects of any condition precedent each of the foregoing set forth in this Section 8.110.1 as of the date of such request and that upon the request of the Bank, the Borrower shall deliver to the Bank a certificate, in form and substance satisfactory to Bank, certifying as to the foregoing on the date of each Loan or issuance of a Letter of Credit.
10.2 The Borrower shall have delivered to the Bank, at the time of the execution of this Agreement, a duly authorized and executed Revolving Note.
10.3 Borrower shall have delivered to the Bank, at the time of the execution of this Agreement, confirmations that the Security Agreement and Pledge Agreement secure the Revolving Note.
10.4 TechTarget Limited shall have delivered to the Bank a confirmation that its Guaranty applies to the Obligations of the Borrower under the Revolving Note, and (iii) that its Security Agreement secures such Obligations under its Guaranty.
10.5 The Borrower shall have delivered to the Bank at the time of execution hereof, or at such other times as shall be reasonably requested by Bank, such other documents relating to the Credit Line as the Bank may reasonably require, all documents sent in form and substance satisfactory to such Lender for approval, consent or satisfaction were acceptable to such Lenderthe Bank.
Appears in 1 contract
Conditions of Lending. 8.1 10.1 Conditions Precedent to Making of Loans on the Closing Date. The ------------------------------------------------------------ obligation of the Lenders to make the initial Revolving Loans on the Closing Date, and Issuing Letters the obligation of the Agent to cause the Letter of Credit Issuer to issue any Letter of Credit on the Effective Date.Closing Date are subject to the following conditions precedent having been satisfied in a manner reasonably satisfactory to the Agent and each Lender:
(a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent each party thereto and the Lenders party hereto on the Effective Date and each Loan Party Borrower shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party the Borrowers before or on the Effective such Closing Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) Upon making the Revolving Loans on the Closing Date (including such Revolving Loans made to finance fees or otherwise as reimbursement for fees, costs and expenses then payable under this Agreement), causing the issuance or continuation of Letters of Credit and after giving effect to the payment of all accounts payable and other amounts more than 30 days past due and the amount of interest payable by Envirosource on December 15, 1999 on the Senior Notes, the Borrowers would have Availability in an amount no less than $12,400,000.
(c) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as of the Closing Date as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(cd) No Default or Event of Default shall have occurred and be continuing exist on the Closing Date, or would exist after giving effect to the Revolving Loans to be made and any Letter made, the Letters of Credit to be issued and the Credit Support to be in place on the Effective Datesuch date.
(de) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties IMS and its Subsidiaries as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and its their respective counsel.
(ef) IMS's EBITDA on a consolidated basis for the first eight months of 1999 shall be not less than $30,000,000.
(g) The Agent shall have received:
(i) each document (includingacknowledgment copies of proper financing statements, without limitation, any PPSA duly filed on or other financing statement) required by before the Security Documents or any other Loan Document or reasonably requested by Closing Date under the UCC of all jurisdictions that the Agent to be filed, registered may deem necessary or recorded desirable in order to create in favour of perfect the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;'s Lien; and
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person duly executed UCC-3 Termination Statements and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, IMS and its Subsidiaries except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties Borrowers shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letterextent invoiced.
(ki) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement Agreement.
(includingj) The Agent and the Lenders shall have had an opportunity, if they so choose, to examine the books of account and other records and files of the Borrowers and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Accounts, Equipment and the certificates Borrowing Base, and the results of insurance such examination and other documents required by Section 7.5)audit shall have been satisfactory to the Agent and the Lenders in all respects.
(lk) The Borrowers All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall have delivered a Borrowing Base Certificate (be satisfactory in form, scope, and supporting information) substance to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c)Lenders. The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Closing Date shall be deemed to be a representation and warranty made by the Borrowers Borrower to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Closing Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 10.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.110.1, and (iii) all documents sent to such Lender for approvalapproval consent, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Conditions of Lending. 8.1 Conditions Precedent to Making Effectiveness on the Closing Date. The obligation of the Lenders to confirm that the Loan Documents are effective on the Closing Date, without any obligation on any Lender to make Revolving Loans available (prior to the Conditions to Initial Funding being satisfied) and Issuing Letters without any obligation on Agent and Lenders to issue any Letter of Credit on the Effective Date.Closing Date (prior to the Conditions to Initial Funding being satisfied), is subject to the following conditions precedent (the “Conditions to Effectiveness”) having been satisfied in a manner satisfactory to the Agent and each Lender or waived:
(a) This Agreement and the other Loan Documents shall have been executed by each party thereto (other than, in the Borrowerscase of this Agreement, the Agent and the Lenders party hereto on the Effective Date Arrangers) and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective such Closing Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations After giving effect to the consummation of the Transactions, the issuance of any Letters of Credit on the Initial Funding Date and warranties made hereunder with all obligations of each Loan Party current, the Borrower shall have (at its selection) (i) a Funded Debt to EBITDA Ratio of less than or equal to 4.5:1.0, calculating EBITDA for the trailing 12 month period at testing and including up to $40,000,000 (of cash on hand at the Borrower) in the other Loan Documents shall be true and correct in all material respects as if made on such date except calculation of Funded Debt, or (ii) a Funded Debt to EBITDA Ratio of less than or equal to 4.65:1.0, calculating EBITDA for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified datesthe trailing 12 month period.
(c) No Default All representations and warranties (i) made by or Event on behalf of Default shall have occurred and be continuing after giving effect the Loan Parties in the Acquisition Agreement (as are material to the Revolving Loans interests of the Lenders (acting in their discretion) but only to be made the extent that the Borrower has the right to terminate its obligations under the Acquisition Agreement as a result of a breach of such representations in the Acquisition Agreement) are true and any Letter of Credit to be issued on correct, and (ii) the Effective Daterepresentation and warranties set forth in this Agreement are true and correct.
(d) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counsel.
(e) The Agent shall have received:
(i) each document (including, without limitation, any Any PPSA or other UCC financing statement) statement required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentationEstoppel documentation and PPSA, PPSA UCC 3 or Civil Code (Quebec) termination or discharge statements (and similar termination statements, discharges statements or releases under other Requirements of Lawapplicable laws) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property Collateral of the Loan Parties, Parties and their respective Subsidiaries except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings UCC filings, and filings made pursuant to other Requirement of Law applicable laws or statutes to perfect or render opposable a security interest or Lien on the in Collateral or any part thereof of a Loan Party made with respect to each of the Loan Parties in the jurisdictions in which each such Person Loan Party is organized and/or in which any Collateral is located and in which PPSA filings, UCC filings or filings made pursuant to other Requirement of Law applicable laws or statutes to perfect or render opposable a security interest or Lien in such Collateral of a Loan Party have been made against any such Person Loan Party in (i) hereinabove.
(f) No Material Adverse Effect The Agent shall have occurred since September 30be reasonably satisfied with the terms and conditions of all material Debt (including, 2021without limitation, the Bridge Facility and all Subordinated Debt) and related documents of the Loan Parties to remain outstanding after the Closing Date.
(g) The Agent shall have received evidence reasonably satisfactory to the Agent that all requisite governmental and third party consents and approvals to (i) the Transaction, (ii) the Bridge Facility and (iii) the transactions contemplated by this Agreement and the other Loan Documents, have been obtained and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the reasonable judgment of the Agent and the Lenders that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents, the Transaction Documents or the Bridge Facility Documents.
(h) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) materially and adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
thereby or otherwise referred to in clause (hg) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29above.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Closing Date at which (for any such premises or processor locationspremises) Collateral is located on the Effective Closing Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Closing Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen landlords and processorswarehousemen; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base Base, equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months months’ rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Lenders, Arrangers and Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such datethereby, (ii) the Attorney Costs, and (iiiii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers Agent and the Lenders shall have delivered had an opportunity, if they so choose, to examine the books of account and other records and files of each Loan Party and to conduct a pre closing field audit which shall include, without limitation, verification of Inventory, Accounts, the Borrowing Base Certificate (Base, the assets purchased in connection with the ▇▇▇▇▇▇ Acquisition and supporting information) the results of such examination and audit shall have been satisfactory to the Agent and the Lenders in form and scope satisfactory to the Agentall respects.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions Transaction shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents Acquisition Agreement without waiver or amendment thereof (other than any such waivers or amendments (including, without limitation, with respect to any representations and warranties in the Acquisition Agreement) as are not materially adverse to the Arrangers unless consented to by the Arrangers or on such other terms and conditions as are reasonably satisfactory to the Lead Arrangers on the Closing Date) and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (ix) copies of each of the Loan Documents Acquisition Agreement, including all amendments and schedules thereto, each certified as true and (ii) evidence that all consents, filings and approvals required correct by Requirements an officer of Law in connection therewith have been obtained and madethe Borrower.
(on) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Closing Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers officers as to the incumbency and signature of its Secretary or Assistant Secretary, as the officer signing such certificatecase may be.
(po) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party and Target certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and Target and in each other jurisdiction in which qualification is necessary in order for such Loan Party and Target to own or lease its property and conduct its business.
(p) The Agent shall be reasonably satisfied with the corporate and legal structure and capitalization of the Loan Parties after giving effect to the consummation of the Transaction, the Loan Documents and the Bridge Facility.
(q) The Agent shall have received a certificate from a Responsible Officer and been reasonably satisfied with the annual financial statements and interim financial statements referenced in Section 6.6(a), and the pro forma balance sheets of the BorrowersLoan Parties referenced in Section 6.6(b).
(r) The Bridge Facility shall have been, or shall contemporaneously herewith be closed in accordance with the Bridge Facility Documents (on terms substantially consistent with those set forth in the term sheet in respect thereof dated as of the Effective DateAugust 4, certifying as 2008, or on terms otherwise reasonably satisfactory to the matters in Sections 8.1(bArrangers).
(s) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued Borrower shall have received on the Effective Closing Date shall be deemed to be a representation the Sponsor Equity Contribution in cash, and warranty made by the Borrowers on terms satisfactory to the effect that all Arrangers, to pay a portion of the conditions precedent purchase price under the Transaction Documents.
(t) The Borrower shall have received the Sponsor Investment in cash or on such other form as is reasonably acceptable to the making Lead Arrangers.
(u) Lenders shall have received from the Loan Parties the requisite information under the “know your customer” and Anti-Terrorism Laws.
(v) Required Lenders and Arrangers shall have received the Risk Management Policy.
(w) Agent shall have received a fully executed copy of the Intercreditor Agreement.
(x) Lenders shall have received a reasonably satisfactory solvency certificate of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions.
(y) Agent shall have received a fully executed copy of the Sponsor Management Agreement.
(z) Target and Borrower shall have repaid all amounts outstanding under its existing credit lines, and all such Revolving Loans or the issuance of such Letters of Credit existing credit lines shall have been satisfiedcancelled permanently.
(aa) The Borrower shall obtain an assignment of the Acquisition Agreement in favour of the Agent, with which shall include a seller acknowledgement regarding the same effect as delivery right of Agent, inter alia, to enforce the provisions and indemnities thereof, on terms and in substance satisfactory to the Agent.
(bb) The Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except shall have completed all due diligence which they consider necessary or appropriate in their discretion in regard to the extent waived or postponed in writing by Loan Parties and the AgentTarget and their and its properties, assets, books and records, operations, prospects and condition (financial and otherwise). Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.18.1 and Section 8.2.
8.2 Conditions Precedent to Making of the Revolving Loans and the Issuing of Letters of Credit (up to Initial Funding Date Amount) on the Initial Funding Date. The obligation of any Lender to make a Revolving Loan (subject to a maximum amount equal to the Initial Funding Date Amount) on the Initial Funding Date, and the obligation of the Agent and Lenders to issue any Letter of Credit (subject to a maximum amount equal to the Initial Funding Date Amount) on the Initial Funding Date shall be subject to the Conditions to Effectiveness being satisfied and continuing to be satisfied on the Initial Funding Date (provided that to the extent such Conditions to Effectiveness relate to an earlier date, such Conditions to Effectiveness shall be true and correct as of such earlier date) and shall be subject to the following further conditions precedent (the “Conditions to Initial Funding”) that on and as of the date of such extension of credit:
(a) The representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such extension of credit as though made on and as of such date, other than any such representation or warranty which relates to a specified prior date (which shall be correct as of such specified prior date) and except to the extent the Agent has been notified in writing by the Borrower that any representation or warranty is not correct and the Required Lenders have explicitly waived in writing compliance with such representation or warranty.
(b) No event has occurred and is continuing, or would result from such extension of credit, which constitutes an Event of Default.
(c) No such Borrowing shall exceed the applicable Availability or the applicable Borrowing Base, provided, however, that the foregoing conditions precedent in this Section 8.2 are not conditions to each Lender participating in or reimbursing Royal Bank or the Agent for such Lender’s Pro Rata Share of any Agent Advance or Overdraft Accommodation made in accordance with the provisions of Sections 1.2(j) and 1.2(k) or unreimbursed drawings under a Letter of Credit.
(d) Agent shall have received and be reasonably satisfied with (i) the delivery of the Borrowing Base Certificate for the period and delivery of the requisite Notice of Borrowing (ii) if required by the Agent the interim unaudited consolidated financial statements of the Borrower for the period from the Closing Date to the Initial Funding Date, and (iii), if the Initial Funding Date is ninety (90) all documents sent to such Lender for approvalor more days past the Closing Date, consent or satisfaction were and if required by Agent, an updated take over commercial finance exam by an appraiser acceptable to such Lenderthe Agent, which exam shall be reasonable satisfactory to the Agent having regard to matters revealed by the commercial finance exam delivered to the Arrangers prior to the Closing Date.
(e) To the extent not previously delivered, all Collateral, Guarantees, Security Documents and other collateral documentation or Loan Documents, and all conditions under Section 8.1(e), shall have been, as applicable, delivered, me
Appears in 1 contract
Conditions of Lending. 8.1 Section 4.1 Conditions Precedent to the Lender's Willingness to Consider Making D&E Revolving Advances. The Lender's willingness to consider making an initial D&E Revolving Advance hereunder shall be subject to the condition precedent that the Lender shall have received all of Revolving Loans the following, each in form and Issuing Letters of Credit on substance satisfactory to the Effective Date.Lender:
(a) This Agreement and the other Loan Documents shall have been Agreement, properly executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security DocumentBorrower.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified dateThe Hydra-Mac Credit Agreement, which shall be true and correct on all material respects as of such specified datesproperly executed by Hydra-Mac.
(c) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of The MBS Credit to be issued on the Effective DateAgreement, properly executed by MBS.
(d) The Agent and Note, properly executed by the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counselBorrower.
(e) The Agent shall have received:
(i) each document (including, without limitation, A true and correct copy of any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made leases pursuant to other Requirement of Law or statutes to perfect or render opposable which the Borrower is leasing the Premises, together with a security interest or Lien on the Collateral or any part thereof made landlord's disclaimer and consent with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabovelease.
(f) No Material Adverse Effect shall have occurred since September 30The Collateral Account Agreement, 2021properly executed by the Borrower, Hydra-Mac, MBS and Norwest Bank Minnesota, National Association.
(g) There shall exist no actionThe Lockbox Agreement, suitproperly executed by the Borrower, investigationHydra-Mac, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality thatMBS and Norwest Bank Minnesota, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or therebyNational Association.
(h) Each Loan Party shall Current searches of appropriate filing offices showing that (i) no state or federal tax liens have established Blocked Account Agreements been filed and remain in respect effect against the Borrower, (ii) no financing statements or assignments of its deposit accounts for collections patents, trademarks or copyrights have been filed and remain in effect against the Borrower except those financing statements and assignments of Accounts at a Clearing Bank reasonably acceptable patents, trademarks or copyrights relating to Permitted Liens or to liens held by Persons who have agreed in writing that upon receipt of proceeds of the Advances, they will deliver UCC releases and/or terminations and releases of such assignments of patents, trademarks or copyrights satisfactory to the Agent Lender, and shall cause (iii) the Lender has duly filed all proceeds of Accounts financing statements necessary to be deposited thereinperfect the Security Interest, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29extent the Security Interest is capable of being perfected by filing.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each A certificate of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory Borrower's Secretary certifying as to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) resolutions of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such dateBorrower's directors, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidenceif required, in formits shareholders, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effectDocuments, (Dii) that such Loan Party’s certificate or the Borrower's articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinaboveand bylaws, and (Eiii) as the signatures of the Borrower's agents authorized to execute and deliver the Loan Documents and other instruments, agreements and certificates, including Advance requests, on the Borrower's behalf.
(j) A current certificate issued by the Secretary of State of North Dakota, certifying that the Borrower is in compliance with all applicable organizational requirements of the State of North Dakota.
(k) Evidence that the Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary.
(l) A support agreement in favor of the Lender, properly executed by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in his personal capacity.
(m) An opinion of counsel to the incumbency Borrower and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewiththe Guarantors, as applicable; and a certificate of another of such Loan Party’s Officers as addressed to the incumbency and signature Lender.
(n) Certificates of the officer signing such certificateinsurance required hereunder, with all hazard insurance containing a lender's loss payable endorsement in the Lender's favor and with all liability insurance naming the Lender as an additional insured.
(o) A separate guaranty, properly executed by each Guarantor, pursuant to which each Guarantor unconditionally guarantees the full and prompt payment of all Obligations.
(p) The Agent shall have received certificates of statusMRI Security Agreement, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date properly executed by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its businessMRI.
(q) The Agent shall have received a certificate from a Responsible Officer Payment of the Borrowers, dated as fees and commissions due through the date of the Effective Date, certifying as to the matters in Sections 8.1(b) initial D&E Revolving Advance and (c). The acceptance expenses incurred by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed Lender through such date and required to be a representation and warranty made paid by the Borrowers to Borrower under Section 8.3, including all legal expenses incurred through the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart date of this Agreement shall be deemed confirmation by such Agreement.
(r) Such other documents as the Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderits sole discretion may require.
Appears in 1 contract
Sources: Credit and Security Agreement (Magnum Resources Inc /De/)
Conditions of Lending. 8.1 Conditions Precedent The obligation of Lender to Making of Revolving Loans and Issuing Letters of Credit make the Loan on the Effective Closing Date is subject to the fulfillment, to the satisfaction of Lender and its counsel, on or before the Closing Date., of the following conditions precedent:
(a) This Agreement and the other Loan Documents Borrower shall have been executed by delivered to Lender the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particularfollowing, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified dates.
(c) No Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Date.
(d) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, form and substance reasonably satisfactory to the Agent, Lender and its counsel.
(e) The Agent shall have receivedbe duly completed and executed:
(i) each document (includingThe Note, without limitationdated the Closing Date, any PPSA or other financing statement) required executed by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;Borrower.
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liabilityA certificate, dated the Effective Date Closing Date, of the President and certifying Secretary of Borrower to the effect that (Aa) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documentsand the by-laws of Borrower, in each case amended to date, of such Loan Partyas in effect on the date thereof, (Bb) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution resolutions adopted by such Loan Party’s the Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) Borrower authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it Note, and (c) set forth in such certificate is a partylist of the names and the true signatures of the Responsible Officers of Borrower (d) the representations and warranties set forth in Section 2 hereof are true and correct on and as of the Closing Date, (e) no Event of Default (as defined in Section 6.1 hereof), and that such resolution no event which with the passage of time or the giving of notice, or both, would become an Event of Default, has not been modified, rescinded or amended occurred and is in full force and effectcontinuing as of the Closing Date, (Df) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since no material adverse change has occurred in Borrower's consolidated financial condition between the date of this Agreement and the last amendment thereto shown on the certificate of good standing furnished hereinaboveClosing Date, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (ig) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.13.2 hereof have been fulfilled on or before the Closing Date.
(b) good standing certificates for Borrower from the States of Delaware and Texas, dated within five business days before the Closing Date,
(c) Such additional documents, certificates and information as Lender may require pursuant to the terms hereof or otherwise reasonably request.
(d) The representations and warranties set forth in Section 2 hereof shall be true and correct on and as of the Closing Date.
(e) No Event of Default, and no event which with the passage of time or the giving of notice, or both, would become an Event of Default, shall have occurred and be continuing.
(iiif) all documents sent to such No act, omission or event shall have occurred that would have a Material Adverse Effect on Borrower or any of its Material Subsidiaries.
(g) There shall not be outstanding any court order or judgment, or any settlement agreement, which, in the opinion of Lender for approvalor its counsel, consent prevents or satisfaction were acceptable to such Lenderrestricts, in any material respect, the making of the Loan or the operation of the Business as contemplated by this Agreement.
Appears in 1 contract
Conditions of Lending. 8.1 Conditions Precedent The obligations of the November 2017 Refinancing Term B Lenders to Making of Revolving make November 2017 Refinancing Term B Loans and Issuing Letters of Credit on the November 2017 Effective Date are subject to the satisfaction (or waiver by a majority of the November 2017 Refinancing Term B Lenders) of the following conditions (the date of such satisfaction or waiver, the “November 2017 Effective Date.”):
(a) This Agreement The Administrative Agent (or its counsel) shall have received (i) from each November 2017 Refinancing Term B Lender and (ii) from each of Parent Holdco, Holdings, the Borrower and the Subsidiary Loan Parties, either (x) a counterpart of this Agreement signed on behalf of such party or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other Loan Documents shall have been executed by the Borrowersmeans of electronic transmission (e.g., the Agent and the Lenders “pdf”)) that such party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have has signed a perfected security interest and Lien in the Collateral counterpart of the type and priority described in each applicable Security Documentthis Agreement.
(b) All representations The Administrative Agent shall have received a Borrowing Request as set forth in Section 3 above and warranties made hereunder and in setting forth the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as information required by Section 2.03 of a specified datethe Existing First Lien Credit Agreement, which shall Borrowing Request may be true and correct on all material respects as conditioned upon the effectiveness of such specified datesthis Agreement.
(c) No Default or Event of Default The Borrower shall have occurred and be continuing after giving effect paid to the Revolving Loans Administrative Agent, for the ratable account of each Existing Term B Lender immediately prior to the November 2017 Effective Date, simultaneously with the making of the November 2017 Refinancing Term B Loans, all accrued and unpaid interest and, to the extent required to be made paid by the Loan Parties under the Loan Documents, fees and any Letter of Credit to be issued other amounts accrued and unpaid on the Existing Term B Loans to, but not including, the November 2017 Effective Date, and substantially simultaneously with the borrowing of the November 2017 Refinancing Term B Loans, the Existing Term B Loans shall be paid in full.
(d) The Agent and the Lenders shall have received such customary opinions of counsel for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, and its counsel.
(e) The Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens on the assets and property of the Loan Parties, except Permitted Liens; and
(iii) the results of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or thereby.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Administrative Agent shall have received a certificate of an Responsible Officer the Executive Vice President or Vice President or similar officer of each Loan Party dated the November 2017 Effective Date:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan PartiesParty, on behalf certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization or (y) with respect to any Loan Parties Party other than the Borrower or Holdings., certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and not in any personal capacity and without personal liabilitygoverning documents of such Loan Party since May 19, dated 2017 (the “May 2017 Effective Date and Date”);
(ii) attaching a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official);
(iii) either (x) certifying (A) that attached thereto is a true and complete copy of the certificate by-laws (or articles of incorporation partnership agreement, limited liability company agreement or other constitutive or organizational equivalent constituent and governing documents, in each case amended to date, ) of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, Party as in effect on the date of such certificate November 2017 Effective Date and at all times since a date prior to the date of the resolution resolutions described in item clause (Civ) belowbelow or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (Cor partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the May 2017 Effective Date;
(iv) certifying that attached thereto is a true and complete copy of a resolution resolutions duly adopted by such Loan Party’s the Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Agreement and the other Loan Documents to which it such Loan Party is a partyparty and, in the case of the Borrower, the Borrowings hereunder, and that such resolution has resolutions have not been modified, rescinded or amended and is are in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown effect on the certificate of good standing furnished hereinabove, and November 2017 Effective Date;
(Ev) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party’s officers executing this Agreement ; and
(vi) certifying as to the absence of any pending proceeding for the dissolution or any other liquidation of such Loan Document delivered in connection herewith or therewithParty or, as applicable; and a certificate to the knowledge of another such person, threatening the existence of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(pe) The Administrative Agent shall have received, on behalf of itself and the November 2017 Refinancing Term B Lenders, a written opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (A) dated the November 2017 Effective Date, (B) addressed to the Administrative Agent and the November 2017 Refinancing Term B Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(f) The Administrative Agent shall have received certificates all fees payable thereto or to any November 2017 Refinancing Arranger or any November 2017 Refinancing Term B Lender, on or prior to the November 2017 Effective Date and, to the extent invoiced at least three Business Days prior to the November 2017 Effective Date, reimbursement or payment of statusall reasonable and documented out-of-pocket expenses (including reasonable fees, certificates charges and disbursements of good standing, existence ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or its equivalent with respect to each Loan Party certified as of a recent date paid by the appropriate Governmental Authorities Loan Parties hereunder or under any Loan Document on or prior to the November 2017 Effective Date (which amounts may be offset against the proceeds of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its businessNovember 2017 Refinancing Term B Loans made hereunder).
(qg) The Administrative Agent shall have received on or prior to the November 2017 Effective Date all documentation and other information of the type set forth in Section 3.25(a) of the Existing First Lien Credit Agreement, to the extent such information has been requested by the Administrative Agent not less than three Business Days prior to the November 2017 Effective Date.
(h) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrowers, Borrower dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the November 2017 Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent effect set forth in this Section 8.1, Sections 4(b) and (iii4(d) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderhereof.
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (Hostess Brands, Inc.)
Conditions of Lending. 8.1 Conditions Precedent SECTION 3.01. CONDITIONS PRECEDENT TO THE MAKING OF THE INITIAL REVOLVING CREDIT LOAN, THE ISSUANCE OF THE INITIAL LETTER OF CREDIT AND THE CREATION OF THE INITIAL B/A. The obligation of the Lenders to Making make the initial Revolving Credit Loans contemplated by this Agreement and the obligation of Revolving Loans and the Issuing Letters Bank to issue the initial Letter of Credit on or create the Effective Date.initial B/A contemplated by this Agreement is subject to the following conditions precedent, the satisfaction of which shall be, and each of which shall be in form and substance, satisfactory to the Agent, the Lenders and their counsel:
(a) This The Agent shall have received the Revolving Credit Notes duly executed and payable to the order of each of the Lenders.
(b) The Agent shall have received certified (as of the date of this Agreement) copies of the resolutions of the Board of Directors of the Borrower authorizing the Loans and authorizing and approving this Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date execution, delivery and each Loan Party shall have performed performance thereof and complied certified copies of all documents evidencing other necessary corporate action and governmental approvals, if any, with all covenants, agreements respect to this Agreement and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the Agent shall have reasonably requested to ensure that the Agent shall have a perfected security interest and Lien in the Collateral of the type and priority described in each applicable Security Document.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct in all material respects as if made on such date except for such representations and warranties made as of a specified date, which shall be true and correct on all material respects as of such specified datesDocuments.
(c) No Default or Event of Default The Agent shall have occurred received certified (as of the date of this Agreement) copies of the resolutions of the Board of Directors and, if required under applicable law, the shareholders of each of the Guarantors, authorizing and be continuing after giving effect to the Revolving Loans to be made approving this Agreement, its Guaranty and any Letter other Loan Document applicable to such Guarantors, and the execution, delivery and performance thereof and certified copies of Credit all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to be issued on this Agreement, its Guaranty and the Effective Dateother Loan Documents.
(d) The Agent and the Lenders shall have received such customary opinions a certificate of counsel for the Secretary or an Assistant Secretary (attested to by another officer) of the Borrower certifying: (i) the names and true signatures of the officer or officers of the Borrower authorized to sign this Agreement, the Notes and the other Loan Parties as the Agent or any Lender shall request, each such opinion Documents to be in delivered hereunder on behalf of the Borrower; and (ii) a form, scope, copy of the Borrower's by-laws as complete and substance reasonably satisfactory to correct on the Agent, and its counseldate of this Agreement.
(e) The Agent shall have received:
received a Certificate of the Secretary or an Assistant Secretary (attested to by another officer) of each of the Guarantors certifying (i) each document (includingthe names and true signatures of the officer or officers of such Guarantor authorized to sign this Agreement, without limitation, any PPSA or other financing statement) required by the Security Documents or its Guaranty and any other Loan Document or reasonably requested by the Agent Documents to be filed, registered or recorded in order to create in favour delivered hereunder on behalf of the Agent, for the benefit of the Agent and the Lenders, a perfected Lien on the Collateral, prior and superior in right to any other Person (other than Permitted Liens), and in proper form for filing, registration or recordation;
such Guarantor; (ii) estoppel documentation, PPSA or termination or discharge statements (a copy of such Guarantor's by-laws as complete and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens correct on the assets date of this Agreement; and property of the Loan Parties, except Permitted Liens; and
(iii) the results stock ownership of a search of tax and other Liens, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinaboveGuarantor.
(f) No Material Adverse Effect The Agent shall have occurred since September 30received copies of the certificate of incorporation and all amendments thereto of the Borrower and each Guarantor, 2021certified in each case by the Secretary of State (or equivalent officer) of the state of incorporation of the Borrower and each Guarantor and a certificate of existence and good standing with respect to the Borrower and each Guarantor from the Secretary of State (or equivalent officer) of the state of incorporation of the Borrower and each Guarantor and from the Secretary of State (or equivalent officer) of any state in which the Borrower or each Guarantor is authorized to do business.
(g) There The Agent shall exist no actionhave received an opinion, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in addressed to the reasonable judgment Agent and each of the AgentLenders, would of ▇'▇▇▇▇▇▇▇▇, Graev and Karabell, LLP, counsel for the Borrower and the Guarantors as to certain matters referred to in Article IV hereof and as to such other matters as the Agent or its counsel may reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby or therebyrequest.
(h) Each Loan Party The Agent shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited thereinreceived from each Guarantor, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29an executed Guaranty.
(i) Each Loan Party The Agent shall have used its reasonable commercial efforts to obtain received evidence that the Borrower and deliver to the Agent landlord waivers each Guarantor maintain adequate casualty and processor liability insurance, with financially sound and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises reputable insurance companies or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Dateassociations, in each case such amounts and covering such risks as are usually carried by companies engaged in form similar businesses and substance reasonably satisfactory to owning properties and doing business in the Agent, duly executed by, as appropriate, such landlords, warehousemen same general areas in which the Borrower and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of ReservesGuarantors operate.
(j) The Loan Parties Agent shall have paid (i) received and satisfactorily reviewed all fees credit agreements and expenses (including Attorney Costsother similar agreements described in Section 4.01(t) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letterthis Agreement.
(k) The Agent shall have received evidenceand satisfactorily reviewed Schedule 4.01(k) to this Agreement which shall disclose all intellectual property of the Borrower and its Subsidiaries including domestic trademarks, in form, scopetradenames and related product names, and substanceincluding all registration numbers, reasonably satisfactory to the Agentserial numbers, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance classifications and other documents required by Section 7.5)information relating to any trademarks or tradenames registered with the United States Patent and Trademark Office.
(l) The Borrowers Agent and the Lenders shall have delivered a Borrowing Base Certificate (received and supporting information) to satisfactorily reviewed the Agent in form and scope satisfactory to the AgentSenior Note Agreement Amendment.
(m) The Borrowers and each Agent shall have received letters evidencing the cancellation of the Guarantors shall have provided Chase Line of Credit and the documentation EAB Line of Credit and any other information lines of credit or similar borrowing facilities available to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such dateBorrower or any Guarantor.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Agent shall have received (i) copies of each and satisfactorily reviewed the management letter issued in connection with the audit of the Loan Documents and schedules theretoBorrower's consolidated financial statements for the year ended December 31, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made1998.
(o) The Agent shall have received a certificate of an Responsible Officer of each of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party’s Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolution has not been modified, rescinded or amended and is in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (E) as to the incumbency and specimen signature of each of such Loan Party’s officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; and a certificate of another of such Loan Party’s Officers as to the incumbency and signature of the officer signing such certificate.
(p) The Agent shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the province, state or other jurisdiction of incorporation or organization of such Loan Party and in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property and conduct its business.
(q) The Agent shall have received a certificate from a Responsible Officer of the Borrowers, dated as of the Effective Date, certifying as to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Conditions of Lending. 8.1 Conditions Precedent The obligations of the Lenders to Making of Revolving make the Loans and Issuing Letters of Credit hereunder on the Effective Date.Closing Date are subject to the satisfaction of the following conditions:
(a) This Agreement and the other Loan Documents shall have been executed by the Borrowers, the Agent and the Lenders party hereto on the Effective Date and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on the Effective Date. In particular, all actions shall have been taken as the The Administrative Agent shall have reasonably requested to ensure that the Agent shall have received a perfected security interest and Lien in the Collateral notice of the type and priority described in each applicable Security Documentborrowing as required by Section 2.03.
(b) All The representations and warranties made hereunder and set forth in the other Loan Documents Article III hereof shall be true and correct in all material respects on and as if of the Closing Date with the same effect as though made on and as of such date date, except for to the extent such representations and warranties made as of a specified expressly relate to an earlier date, which shall be true and correct on all material respects as of such specified dates.
(c) No The Borrower shall be in compliance with all the terms and provisions set forth herein and in each other Loan Document on its part to be observed or performed, and at the time of and immediately after the borrowing on the Closing Date, no Event of Default or Event of Default shall have occurred and be continuing after giving effect to the Revolving Loans to be made and any Letter of Credit to be issued on the Effective Datecontinuing.
(d) The Administrative Agent and the Lenders shall have received such customary opinions a certificate, dated the Closing Date and signed by a Financial Officer of counsel for the Loan Parties as Borrower, confirming compliance with the Agent or any Lender shall request, each such opinion to be conditions precedent set forth in a form, scope, paragraphs (b) and substance reasonably satisfactory to the Agent, and its counsel(c) above.
(e) The Administrative Agent shall have received all amounts due and payable hereunder or under any other Loan Document on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower.
(f) The Administrative Agent shall have received:
(i) each document (including, without limitation, any PPSA or other financing statement) required by the Security Documents or any other Loan Document or reasonably requested by the Agent to be filed, registered or recorded in order to create in favour on behalf of the Agent, for the benefit of the Agent itself and the Lenders, a perfected Lien on favorable written opinion of [ ], counsel for the CollateralBorrower, prior and superior substantially to the effect set forth in right to any other Person Exhibit C (other than Permitted Liens)i) dated the Closing Date, and in proper form for filing, registration or recordation;
(ii) estoppel documentation, PPSA or termination or discharge statements (and similar termination statements, discharges or releases under other Requirements of Law) authorized for filing by the appropriate Person and such other instruments, in form and substance reasonably satisfactory addressed to the Administrative Agent, as shall be necessary to terminate the Lenders and satisfy all Liens on the assets each Fronting Bank, and property of the Loan Parties, except Permitted Liens; and
(iii) covering such other matters relating to the results of a search of tax Loan Documents and other Liensthe Transactions as the Administrative Agent shall reasonably request, and judgments and of the PPSA filings, Canadian Intellectual Property Office filings and filings made pursuant Borrower hereby instructs such counsel to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien on the Collateral or any part thereof made with respect to each of the Loan Parties in the jurisdictions in which each deliver such Person is organized and/or in which any Collateral is located and in which PPSA filings or filings made pursuant to other Requirement of Law or statutes to perfect or render opposable a security interest or Lien in such Collateral have been made against any such Person in (i) hereinabove.
(f) No Material Adverse Effect shall have occurred since September 30, 2021opinion.
(g) There shall exist no actionAll legal matters incidental to this Agreement, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that, in the reasonable judgment of the Agent, would reasonably be expected to (i) have a Material Adverse Effect or (ii) adversely affect this Agreement or any of the other Loan Documents or any of and the transactions contemplated hereby or therebyTransactions shall be reasonably satisfactory to the Lenders and to counsel for the Administrative Agent.
(h) Each Loan Party shall have established Blocked Account Agreements in respect of its deposit accounts for collections of Accounts at a Clearing Bank reasonably acceptable to the Agent and shall cause all proceeds of Accounts to be deposited therein, in accordance with the terms of Section 7.29, provided that, if Blocked Account Agreements have not been delivered on or prior to the Effective Date, then such items may be delivered in accordance with Section 7.29.
(i) Each Loan Party shall have used its reasonable commercial efforts to obtain and deliver to the Agent landlord waivers and processor and bailee letters from landlords and warehousemen of each of the premises leased by such Loan Party and from processors in possession of Collateral on the Effective Date at which (for any such premises or processor locations) Collateral is located on the Effective Date and from the public warehousemen at whose warehouses any Collateral pledged by such Loan Party is located on the Effective Date, in each case in form and substance reasonably satisfactory to the Agent, duly executed by, as appropriate, such landlords, warehousemen and processors; provided, however, that the delivery of such agreements are not conditions to closing hereunder, but for each such location for which such an agreement is not delivered, the Agent may establish a reserve against the Borrowing Base equal to the lesser of (i) the amount of applicable Excess Availability from Eligible Inventory and Eligible Machinery & Equipment at the applicable location; or (ii) up to three (3) months rental and other charges for the applicable location, in each case, in accordance with clause (b) of definition of Reserves.
(j) The Loan Parties shall have paid (i) all fees and expenses (including Attorney Costs) of the Agent incurred in connection with any of the Loan Documents and the transactions contemplated thereby prior to such date, and (ii) all fees and expenses as set forth in the Fee Letter.
(k) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement (including, without limitation, the certificates of insurance and other documents required by Section 7.5).
(l) The Borrowers shall have delivered a Borrowing Base Certificate (and supporting information) to the Agent in form and scope satisfactory to the Agent.
(m) The Borrowers and each of the Guarantors shall have provided the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know your customer” rules and regulations and policies, including the PATRIOT Act, Proceeds of Crime Act and AML Legislation, in each case at least three (3) business days prior to such date.
(n) The Transactions shall have been, or contemporaneously herewith shall be, duly consummated in accordance with the terms of the Loan Documents and in compliance with all material applicable Requirements of Law, on terms reasonably acceptable to the Agent. The Administrative Agent shall have received (i) copies of each of the Loan Documents and schedules thereto, and (ii) evidence that all consents, filings and approvals required by Requirements of Law in connection therewith have been obtained and made.
(o) The Agent shall have received a certificate of the Secretary or an Responsible Officer of each Assistant Secretary of the Loan Parties, on behalf of the Loan Parties and not in any personal capacity and without personal liability, Borrower dated the Effective Closing Date and certifying (A) that attached thereto is a true and complete copy of the certificate or articles of incorporation or other constitutive or organizational documents, in each case amended to date, of such Loan Party, (B) that attached thereto is a true and complete copy of such Loan Party’s by-laws or limited liability company agreement, as the case may be, as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (C) below, (C) that attached thereto is a true and complete copy of a resolution resolutions duly adopted by such Loan Party’s the Board of Directors (or in other governing body of the case of a Loan Party that is not a corporation, the equivalent governing body) Borrower authorizing the execution, delivery and performance of this Agreement the Loan Documents and the other Loan Documents to which it is a partyborrowings hereunder, and that such resolution has resolutions have not been modified, rescinded or amended and is are in full force and effect, (D) that such Loan Party’s certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, effect and (EB) as to the incumbency and specimen signature of each officer of such the Borrower executing any Loan Party’s officers executing this Agreement Document or any other Loan Document document delivered in connection herewith or therewith, as applicableherewith; and (ii) a certificate of another of such Loan Party’s Officers officer as to the incumbency and specimen signature of the officer signing Secretary or Assistant Secretary executing the certificate pursuant to (i) above; and (iii) such certificateother documents as the Lenders or counsel for the Administrative Agent, may reasonably request.
(pi) The Agent Parent Guarantee Agreement and each of the Security Documents set forth in Schedule 1.01 as being delivered on the Closing Date shall have received certificates of status, certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date been duly executed by the appropriate Governmental Authorities of parties thereto and delivered to the province, state or other jurisdiction of incorporation or organization of such Loan Party Administrative Agent and shall be in each other jurisdiction in which qualification is necessary in order for such Loan Party to own or lease its property full force and conduct its businesseffect.
(qj) The Agent Each Letter of Credit set forth on Schedule 4.01 shall have received a certificate from a Responsible Officer of been duly issued and delivered by the Borrowers, dated as of the Effective Date, certifying as applicable Fronting Bank set forth on Schedule 4.01 to the matters in Sections 8.1(b) and (c). The acceptance by the Borrowers of any Revolving Loans made or any Letters of Credit issued on the Effective Date shall be deemed to be a representation and warranty made by the Borrowers to the effect that all of the conditions precedent to the making of such Revolving Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Administrative Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrowers, dated the Effective Date, to such effect, except to the extent waived or postponed in writing by the Agent. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement Aggregate Available Amount shall be deemed confirmation by such Lender that not less than the sum of (i) all conditions precedent the aggregate principal amount of the Dollar Loans to be made on the Closing Date and the Interest Component in this Section 8.1 have been fulfilled to the satisfaction of such L▇▇▇▇▇, respect thereof and (ii) the decision Dollar Equivalent of such Lender the Local Currency Loans to execute be made on the Closing Date and deliver the Foreign Currency Component in respect thereof.
(k) The Existing Agreement shall have been or shall simultaneously be terminated and all amounts outstanding thereunder (including all interest accrued on loans outstanding thereunder to the Agent an executed counterpart Closing Date) paid in full (or, in the case of this Agreement was made by such L▇▇▇▇▇ independently and without reliance on the Agent or any other Lender principal of loans outstanding thereunder, continued as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderLoans hereunder).
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