Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender to make the initial Loans or to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent: (a) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation); (b) no material adverse change shall have occurred in the assets, business or prospects of Borrower since the date of Lender’s latest field examination (not including for this purpose the field review referred to in clause (c) below) and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral; (c) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof or such earlier date as Lender may agree; (d) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements and Credit Card Processor agreements from all of Borrower’s Credit Card Processors; (e) the Closing Date Excess Availability as determined by Lender, as of the date hereof, shall be not less than 20% of the Borrowing Base computed as of the date hereof after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder; (f) all deposit accounts of Borrower shall be maintained with Lender, in each case subject to a Deposit Account Control Agreement in form and substance satisfactory to Lender; (g) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all of the Collateral; (h) Lender shall have received and reviewed lien and judgment search results for the jurisdiction of organization of Borrower, the jurisdiction of the chief executive office of Borrower and all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Lender; (i) Lender shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of Borrower and owned by Borrower, in each case together with stock powers duly executed in blank with respect thereto; (j) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee, such insurance to include business interruption coverage (including coverage of Borrower’s website) and product liability coverage, in each case satisfactory to Lender; (k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and such other matters as Lender may request; (l) Lender shall have received evidence satisfactory to it that Borrower has not granted nor been granted any royalty agreements or licenses; (m) Borrower shall have paid all fees and expenses required to be paid by it under the term of this Agreement provided that the aggregate amount paid by Borrower to Lender for attorneys’ fees incurred in connection with the closing of transactions rendered by this Agreement plus the expenses of the inventory appraisal and field examinations shall not exceed $50,000; and (n) This Agreement, the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender Lenders to make the initial Loans or of Issuing Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of Borrowereach Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(b) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers since the date of Lender’s Agent's latest field examination (not including for this purpose the field review referred to in clause (c) below) and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor Guarantor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(c) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof or such earlier date as Lender may agree;[Intentionally Omitted]
(d) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all consentsDeposit Account Control Agreements by and among Agent, waiverseach Borrower and Guarantor, acknowledgments as the case may be and other agreements from third persons which Lender may deem necessary each bank where such Borrower (or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing AgreementsGuarantor) has a deposit account, including, without limitation, Collateral Access Agreements among Agent, Fedders Canada and Credit Card Processor agreements from all each bank where proceeds of Borrower’s Credit Card ProcessorsFedders Canada Accounts are at any time deposited, in each case, duly authorized, executed and delivered by such bank and Borrower or Guarantor, as the case may be (or Agent shall be the bank's customer with respect to such deposit account as Agent may specify);
(e) Agent shall have received such amendments to the Closing Date Excess Availability Mortgages as determined by Lender, Agent shall require as a result of the date hereof, shall be not less than 20% amended and restated terms of the Borrowing Base computed financing arrangements between Lenders and Borrowers set forth in this Agreement;
(f) In connection with the assignments of the Mortgages by Wachovia to Agent as of the date hereof after giving effect and any amendments to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
mortgages required by subsection (fe) all deposit accounts of Borrower shall be maintained with Lenderabove, in each case subject to a Deposit Account Control Agreement in form and substance satisfactory to Lender;
(g) Lender Agent shall have received evidencereceived, in form and substance satisfactory to LenderAgent, that Lender has a valid perfected first priority security interest in all and effective endorsement to the existing title insurance policy insuring the priority, amount and sufficiency of the CollateralMortgages;
(hg) Lender shall have received and reviewed lien and judgment search results for the jurisdiction of organization of Borrower, the jurisdiction of the chief executive office of Borrower and all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Lender;
(i) Lender Agent shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Fedders) and owned by Borrowerany Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto, limited, however, to sixty-five (65%) percent of such Capital Stock in the case of the Capital Stock of Fedders Canada;
(jh) Lender Agent shall have either (i) confirmed that it has in its possession Collateral Access Agreements, satisfactory to Agent, with respect to each of Borrowers' current leased Inventory locations and executed by each of Borrowers' current Freight Forwarders, Port Processors and other Inventory bailees, or (ii) received Collateral Access Agreements for each of such Inventory locations and from each of such bailees for whom Agent did not already have such Collateral Access Agreement in its possession;
(i) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee, such insurance to include business interruption coverage (including coverage of Borrower’s website) and product liability coverage, in each case satisfactory to Lender;
(kj) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrower Borrowers and Guarantors with respect to the Financing Agreements and such other matters as Lender Agent may request;
(l) Lender shall have received evidence satisfactory to it that Borrower has not granted nor been granted any royalty agreements or licenses;
(m) Borrower shall have paid all fees and expenses required to be paid by it under the term of this Agreement provided that the aggregate amount paid by Borrower to Lender for attorneys’ fees incurred in connection with the closing of transactions rendered by this Agreement plus the expenses of the inventory appraisal and field examinations shall not exceed $50,000; and
(nk) This Agreement, the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender to make On the initial Loans or to issue the initial Letters of Credit hereunder is subject to the satisfaction ofClosing Date, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of Borrower shall have satisfied each of the following conditions precedentconditions:
(a) all requisite corporate action and proceedings in connection with this Agreement Borrower shall have paid to the Agents and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of Lenders the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall fees set forth the same complete corporate name of Borrower as is set forth herein or referenced in Section 3.04 and such document as shall set forth the organizational identification number of Borrowerany other accrued and unpaid fees, if one is issued in its jurisdiction of incorporation);
(b) no material adverse change shall have occurred in the assets, business out-of-pocket expenses or prospects of Borrower since the date of Lender’s latest field examination (not including for this purpose the field review referred to in clause (c) below) and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations commissions due hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(c) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Inventory through legal fees and expenses) related to due diligence performed by the date of Agents or in connection with the closing and test counts of the Inventory transactions contemplated by this Agreement.
(b) The Existing Facility shall be repaid in full and terminated and the Agents shall have received a manner pay-off letter in form and substance satisfactory to each of them evidencing such repayment and termination.
(c) The Agents shall have received the following, in form and substance reasonably satisfactory in all respects to the Lenders and (except for the Notes) in sufficient number for each Lender:
(i) the duly executed counterparts of this Agreement;
(ii) the duly executed Syndicated Notes and the duly executed Swing Line Note;
(iii) the duly executed Guaranty Agreements;
(iv) a duly executed certificate of Borrower, together in substantially the form of Exhibit E attached hereto and appropriately completed, certifying that (i) the representations and warranties set forth in Article 5 hereof are true and correct on and as of such date with the same effect as though made on and as of such supporting documentation date, (ii) Borrower and the Guarantors are in compliance with all the terms and provisions set forth in this Agreement and the other Credit Documents on their respective parts to be observed or performed, (iii) on the Closing Date, no Default or Event of Default, will have occurred or be continuing and (iv) as may be necessary or appropriateof the Closing Date, there has been no materially adverse change in the financial condition of Borrower and other documents and information that will enable Lender its Subsidiaries as reflected in the pro forma financial statements delivered to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Lender, not more than three (3) Business Days Agents prior to the date hereof or such earlier date as Lender may agreeClosing Date;
(dv) Lender shall have receiveda duly executed solvency certificate of Borrower and the Guarantors, in form and substance satisfactory to Lenderthe Lenders;
(vi) certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(vii) certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(viii) certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(ix) copies of all documents and instruments, including all consents, waiversauthorizations and filings, acknowledgments and other agreements from third persons which Lender may deem necessary required or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral advisable under any Requirement of Law or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements and Credit Card Processor agreements from all of Borrower’s Credit Card Processors;
(e) the Closing Date Excess Availability as determined by Lender, as any material Contractual Obligation of the date hereofCredit Parties, shall be not less than 20% of the Borrowing Base computed as of the date hereof after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(x) certificates of insurance issued on behalf of insurers of Borrower and the Guarantors, describing in reasonable detail the types and amounts of insurance maintained by Borrower and the Guarantors;
(xi) the favorable opinion of Jones, Day, Reavis & Pogue, counsel to the Credit Parties, substantia▇▇▇ ▇n the f▇▇▇ ▇▇ Ex▇▇▇▇▇ F-1 addressed to the Agents and each of the Lenders and the favorable opinion of in-house general counsel to the Credit Parties, substantially in the form of Exhibit F-2 addressed to the Agents and each of the Lenders;
(xii) all deposit accounts corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of Borrower the Credit Documents shall be maintained with Lender, in each case subject to a Deposit Account Control Agreement reasonably satisfactory in form and substance satisfactory to Lenderthe Required Lenders;
(gxiii) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all three-year forecast of the Collateral;
(h) Lender shall have received and reviewed lien and judgment search results Consolidated Companies for the jurisdiction of organization of Borrowerperiod commencing January 1, the jurisdiction of the chief executive office of Borrower and all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Lender;
(i) Lender shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of Borrower and owned by Borrower, in each case together with stock powers duly executed in blank with respect thereto;
(j) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee, such insurance to include business interruption coverage (including coverage of Borrower’s website) and product liability coverage, in each case satisfactory to Lender;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and such other matters as Lender may request;
(l) Lender shall have received evidence satisfactory to it that Borrower has not granted nor been granted any royalty agreements or licenses;
(m) Borrower shall have paid all fees and expenses required to be paid by it under the term of this Agreement provided that the aggregate amount paid by Borrower to Lender for attorneys’ fees incurred in connection with the closing of transactions rendered by this Agreement plus the expenses of the inventory appraisal and field examinations shall not exceed $50,0002003; and
(nxiv) This Agreementaudited financial statements for the Consolidated Companies for the fiscal year ended December 31, the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender2001.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender Lenders to make the initial Loans or of Agent and Lenders to issue provide for the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) Agent shall have received, in form and substance satisfactory to Agent, all releases, terminations and such other documents as Agent may request to evidence and effectuate the termination by the Existing Lenders of their respective financing arrangements with Borrowers and Guarantors and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and Guarantor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or Guarantor, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or Guarantor in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of Borrowereach Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(bc) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers since the date of LenderAgent’s latest field examination (not including for this purpose the field review referred to in clause (cd) below) and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor Guarantor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(cd) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Inventory Accounts through the date of closing and test counts of the Inventory in a manner satisfactory to Lenderclosing, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof or such earlier date as Lender Agent may agree;
(de) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements and Credit Card Processor agreements from all of Borrower’s Credit Card ProcessorsAgreements;
(ef) the Closing Date Excess Availability as determined by LenderAgent, as of the date hereof, shall be not less than 20% of the Borrowing Base computed as of the date hereof $5,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(fg) all deposit accounts of Borrower Agent shall be maintained with Lenderhave received, in each case subject to a Deposit Account Control Agreement in form and substance satisfactory to LenderAgent, a guaranty duly executed and delivered by Guarantors;
(gh) Lender Agent shall have received, in form and substance satisfactory to Agent, subordination agreements duly executed and delivered by Sonopress LLC, a Delaware limited liability company, and Portside Growth and Opportunity Fund, a company organized under the laws of the Cayman Islands, respectively, and acknowledged by Administrative Borrower;
(i) Agent shall have received, in form and substance satisfactory to Agent, Deposit Account Control Agreements by and among Agent, each Borrower and Guarantor, as the case may be and each bank where such Borrower (or Guarantor) has a deposit account, in each case, duly authorized, executed and delivered by such bank and Borrower or Guarantor, as the case may be (or Agent shall be the bank’s customer with respect to such deposit account as Agent may specify);
(j) Agent shall have received evidence, in form and substance satisfactory to LenderAgent, that Lender Agent has a valid perfected first priority security interest in all of the Collateral;
(hk) Lender Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of Borrowereach Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrower Borrowers and Guarantors are located, which search results shall be in form and substance satisfactory to LenderAgent;
(il) Lender Agent shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) and owned by Borrowerany Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto;
(jm) Lender Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee, such insurance to include business interruption coverage (including coverage of Borrower’s website) and product liability coverage, in each case satisfactory to Lender;
(kn) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrower Borrowers and Guarantors with respect to the Financing Agreements and such other matters as Lender Agent may request;
(l) Lender shall have received evidence satisfactory to it that Borrower has not granted nor been granted any royalty agreements or licenses;
(m) Borrower shall have paid all fees and expenses required to be paid by it under the term of this Agreement provided that the aggregate amount paid by Borrower to Lender for attorneys’ fees incurred in connection with the closing of transactions rendered by this Agreement plus the expenses of the inventory appraisal and field examinations shall not exceed $50,000; and
(no) This Agreement, the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Sources: Loan and Security Agreement (Image Entertainment Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender to make On the initial Loans or to issue the initial Letters of Credit hereunder is subject to the satisfaction ofClosing Date, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of Borrower shall have satisfied each of the following conditions precedentconditions:
(a) all requisite corporate action and proceedings in connection with this Agreement Borrower shall have paid to the Administrative Agent and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of Lenders the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall fees set forth the same complete corporate name of Borrower as is set forth herein or referenced in Section 3.04 and such document as shall set forth the organizational identification number of Borrowerany other accrued and unpaid fees, if one is issued in its jurisdiction of incorporation);
(b) no material adverse change shall have occurred in the assets, business out-of-pocket expenses or prospects of Borrower since the date of Lender’s latest field examination (not including for this purpose the field review referred to in clause (c) below) and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations commissions due hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(c) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Inventory through legal fees and expenses) related to due diligence performed by the date of Administrative Agent or in connection with the closing and test counts of the Inventory transactions contemplated by this Agreement.
(b) The indebtedness under the Existing Credit Agreement shall be repaid in full and the commitments thereunder terminated and the Administrative Agent shall have received a manner pay-off letter in form and substance satisfactory to Lenderit evidencing such repayment and termination.
(c) The Administrative Agent shall have completed, together with such supporting documentation as may be necessary or appropriateto its satisfaction, all legal, tax, business and other documents due diligence with respect to the business, assets, liabilities, operations and information that will enable Lender to accurately identify condition (financial or otherwise) of the Parent and verify the Collateral), the results of which its Subsidiaries in each case shall be scope and determination satisfactory to Lender, not more than three (3) Business Days prior to the date hereof or such earlier date as Lender may agree;Administrative Agent in its sole discretion.
(d) Lender The Administrative Agent shall have receivedreceived the following, in form and substance reasonably satisfactory in all respects to the Lenders and (except for the Notes) in sufficient number for each Lender:
(i) the duly executed counterparts of this Agreement;
(ii) the duly executed Syndicated Notes and the duly executed Swing Line Note;
(iii) the duly executed Guaranty Agreements;
(iv) a duly executed certificate of Parent, in substantially the form of Exhibit F attached hereto and appropriately completed, certifying that (i) the representations and warranties set forth in Article V hereof are true and correct on and as of such date with the same effect as though made on and as of such date, (ii) Borrower and the Guarantors are in compliance with all the terms and provisions set forth in this Agreement and the other Credit Documents or their respective parts to be observed or performed, (iii) on the Closing Date, no Default or Event of Default, will have occurred or be continuing and (iv) as of the Closing Date, there has been no materially adverse change in the financial condition of the Parent and its Subsidiaries as reflected in the pro forma financial statements delivered to the Administrative Agent prior to the Closing Date;
(v) a duly executed solvency certificate of Borrower and the Guarantors, in form and substance satisfactory to Lenderthe Lenders;
(vi) certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(vii) certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(viii) certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(ix) copies of all documents and instruments, including all consents, waiversauthorizations and filings, acknowledgments and other agreements from third persons which Lender may deem necessary required or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral advisable under any Requirement of Law or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements and Credit Card Processor agreements from all of Borrower’s Credit Card Processors;
(e) the Closing Date Excess Availability as determined by Lender, as any material Contractual Obligation of the date hereofCredit Parties, shall be not less than 20% of the Borrowing Base computed as of the date hereof after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(fx) certificates of insurance issued on behalf of insurers of Borrower and the Guarantors, describing in reasonable detail the types and amounts of insurance maintained by Borrower and the Guarantors;
(xi) the favorable opinion of ▇▇▇▇▇ Day, counsel to the Credit Parties, substantially in the form of Exhibit G-1 addressed to the Administrative Agent and each of the Lenders and the favorable opinion of in-house general counsel to the Credit Parties, substantially in the form of Exhibit G-2 addressed to the Administrative Agent and each of the Lenders;
(xii) all deposit accounts corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of Borrower the Credit Documents shall be maintained with Lender, in each case subject to a Deposit Account Control Agreement reasonably satisfactory in form and substance satisfactory to Lenderthe Required Lenders;
(gxiii) Lender shall have received evidenceprojected income statements, in form projected balance sheets, and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all projected statements of cash flow of the CollateralConsolidated Companies, all prepared in accordance with GAAP, on an annual basis for the five (5) year period following the Closing Date;
(hxiv) Lender shall have received and reviewed lien and judgment search results for the jurisdiction of organization of Borrower, the jurisdiction unaudited financial statements of the chief executive office of Borrower Consolidated Companies for all interim quarterly periods ending after June 30, 2006 and all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Lender;
(i) Lender shall have received originals of through the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of Borrower and owned by Borrower, in each case together with stock powers duly executed in blank with respect thereto;
(j) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee, such insurance to include business interruption coverage (including coverage of Borrower’s website) and product liability coverage, in each case satisfactory to Lender;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and such other matters as Lender may request;
(l) Lender shall have received evidence satisfactory to it that Borrower has not granted nor been granted any royalty agreements or licenses;
(m) Borrower shall have paid all fees and expenses required to be paid by it under the term of this Agreement provided that the aggregate amount paid by Borrower to Lender for attorneys’ fees incurred in connection with the closing of transactions rendered by this Agreement plus the expenses of the inventory appraisal and field examinations shall not exceed $50,000Closing Date; and
(nxv) This Agreementaudited financial statements for the Consolidated Companies for the fiscal year ended December 31, the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender2005.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation Each of Lender the following is a condition precedent to make Administrative Agent and Lenders making the initial Loans or to issue and providing the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedenthereunder:
(a) all requisite corporate and limited liability company action and proceedings (as the case may be) in connection with this Agreement and the other Financing Agreements Loan Documents shall be satisfactory in form and substance to LenderAdministrative Agent, and Lender Administrative Agent shall have received all information and copies of all documents, including records of requisite corporate or company action and proceedings which Lender Administrative Agent may have requested in connection therewith, such documents where requested by Lender Administrative Agent or its counsel to be certified by appropriate corporate officers officers, managers, members or any Governmental Authority (and including a copy of the certificate of incorporation or articles of organization as applicable, of each Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate or limited liability company name of such Borrower as is set forth herein and such document as shall set forth the organizational identification number of each Borrower, if one is issued in its jurisdiction of incorporation);
(b) Administrative Agent shall have determined that no material adverse change shall have occurred in the assets, assets or business or prospects of Borrower Borrowers since the date of Lender’s Administrative Agent's latest field examination (not including for this purpose the field review referred to in clause (c) below) and no change or event shall have occurred which would impair in any material respect the ability of Borrower the Borrowers (taken as a whole) or any Obligor the Obligors to perform its their obligations hereunder or under any of the other Financing Agreements Loan Documents to which it is a party they are parties or of Administrative Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(c) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof or such earlier date as Lender may agree;
(d) Lender Administrative Agent shall have received, in form and substance satisfactory to LenderAdministrative Agent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Administrative Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements and Credit Card Processor agreements from all of Borrower’s Credit Card ProcessorsLoan Documents;
(ed) the Closing Date Excess Availability as determined by Lender, as of the date hereof, shall be not less than 20% of the Borrowing Base computed as of the date hereof after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(f) all deposit accounts of Borrower shall be maintained with Lender, in each case subject to a Deposit Account Control Agreement in form and substance satisfactory to Lender;
(g) Lender Administrative Agent shall have received evidence, in form and substance satisfactory to LenderAdministrative Agent, that Lender Administrative Agent has or will have a valid perfected first priority security interest in all of the Collateral, subject only to liens permitted under this Agreement;
(he) Lender Administrative Agent shall have received and reviewed lien and judgment search results for the jurisdiction of incorporation and organization of Borrowereach Borrower (as the case may be), the jurisdiction of the chief executive office of each Borrower and all jurisdictions in which assets of Borrower Borrowers are located, which search results shall be in form and substance satisfactory to LenderAdministrative Agent;
(if) Lender Administrative Agent shall have received originals of original "Membership Interests Certificates" representing the shares of the stock certificates representing all of the issued "Required Value" (as defined in and outstanding shares of the Capital Stock of Borrower and owned by Borrower, in each case together with stock powers duly executed in blank with respect theretorequired under Section 5.1);
(jg) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee, such insurance to include business interruption coverage (including coverage of Borrower’s website) and product liability coverage, in each case satisfactory to Lender;
(k) Lender Administrative Agent shall have received, in form and substance reasonably satisfactory to LenderAdministrative Agent, such opinion letters of counsel to Borrower Borrowers with respect to the Financing Agreements Loan Documents and such other matters as Lender Administrative Agent may request;; and. 4833-7494-6387.12 45083/0017 03/0202018
(lh) Lender shall have received evidence satisfactory to it that Borrower has not granted nor been granted any royalty agreements or licenses;
(m) Borrower shall have paid all fees and expenses required to be paid by it under the term of this Agreement provided that the aggregate amount paid by Borrower to Lender for attorneys’ fees incurred in connection with the closing of transactions rendered by this Agreement plus the expenses of the inventory appraisal and field examinations shall not exceed $50,000; and
(n) This Agreement, the other Financing Agreements Loan Documents and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAdministrative Agent, in form and substance satisfactory to LenderAdministrative Agent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender to make the initial Loans or to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) all requisite corporate and limited liability action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of Borrowereach Borrower or Guarantor, if one is issued in its jurisdiction of incorporationorganization);
(b) Intentionally omitted;
(c) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers since the date of Lender’s latest field examination (not including for this purpose the field review referred to in clause (cd) below) and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor Guarantor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(cd) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof or such earlier date as Lender may agree;
(de) Lender shall (i) be satisfied that, immediately after giving effect to the transactions contemplated to occur under this Agreement, each Borrower (except for Thermal and Industrial Sales) and with respect to Acoustical and TAS, taken together, is and Borrowers and Guarantors (taken as a whole) are Solvent and (ii) have received an officer’s certificate prepared by the chief financial officer of Parent as to the financial condition, solvency and related matters of Borrowers and Guarantors after giving effect to this Agreement (and the initial borrowings under the Financing Agreements on the date hereof, if any), in form and substance reasonably satisfactory to Lender;
(f) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and Agreement, the other Financing Agreements, including, without limitation, Collateral Access Agreements and Credit Card Processor agreements from all of Borrower’s Credit Card ProcessorsAgreements;
(eg) the Closing Date Excess Availability as determined by Lender, as of the date hereof, shall be not less than 20% of the Borrowing Base computed as of the date hereof $20,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued on the date hereof, if any, in connection with the initial transactions hereunderhereunder (provided, that, for purposes of this condition precedent, the term “Excess Availability” shall mean the sum of (i) Excess Availability and (ii) the amount of cash on deposit with JPMorgan Chase Bank, N.A. with respect to the Existing Letters of Credit as determined by Lender;
(fh) all deposit accounts of Borrower Lender shall be maintained with Lenderhave received, in each case subject to a Deposit Account Control Agreement in form and substance satisfactory to Lender, Deposit Account Control Agreements and Investment Property Control Agreements by and among Lender, each Borrower and Guarantor, as the case may be and each bank, securities intermediary or other Person where such Borrower (or Guarantor) has a deposit account, investment account or other account, in each case, duly authorized, executed and delivered by such bank, securities intermediary or other Person and Borrower or Guarantor, as the case may be (or Lender shall be the bank’s customer with respect to such deposit account as Lender may specify);
(gi) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all of the Collateral;
(hj) Lender shall have received and reviewed lien and judgment search results for the jurisdiction of organization of Borrowereach Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrower Borrowers and Guarantors are located, which search results shall be in form and substance satisfactory to Lender;
(ik) Lender shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) and owned by Borrowerany Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto;
(jl) a Borrowing Base Certificate setting forth the Revolving Loans and Letters of Credit available to Borrowers as of the date of this Agreement as completed in a manner reasonably satisfactory to Lender and duly authorized, executed and delivered by Administrative Borrower on behalf of Borrowers;
(m) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee, such insurance to include business interruption coverage (including coverage of Borrower’s website) and product liability coverage, in each case satisfactory to Lender;
(kn) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower Borrowers and Guarantors with respect to the Financing Agreements and the security interests and liens of Lender with respect to the Collateral and such other matters as Lender may request;
(li) Lender shall have received evidence satisfactory to it that Borrower has not granted nor been granted any royalty agreements or licenses;
(m) Borrower shall have paid all payment from Borrowers of the fees and expenses required to be paid by to it under in accordance with the term terms of this Agreement provided that the aggregate amount paid by Borrower to Lender Fee Letter, and (ii) Lender’s counsel shall have received payment from Borrowers of its fee for attorneys’ fees services rendered and disbursements incurred in connection with the closing of transactions rendered by this Agreement plus the expenses of the inventory appraisal and field examinations shall not exceed $50,000contemplated hereby; and
(np) This Agreement, the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender Agent and Lenders to make the initial Loans or of Issuing Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:.
(a) Agent shall have received, in form and substance satisfactory to Agent, all releases, terminations and such other documents as Agent may request to evidence and effectuate the termination by the Existing Lenders of their respective financing arrangements with Borrowers and Guarantors;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of Borrowereach Borrower or Guarantor, if one is issued in its jurisdiction of incorporationincorporation or formation);
(bc) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers since the date of Lender’s Agent's latest field examination (not including for this purpose the field review referred to in clause (cd) below) and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor Guarantor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(cd) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records with respect to the distribution center of Borrowers and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three seven (37) Business Days prior to the date hereof or such earlier date as Lender Agent may agree;
(de) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, (i) an opening pro-forma balance sheet of Parent and its Subsidiaries (on a consolidated basis), reflecting the transactions contemplated hereby and (ii) projected income statements, balance sheets and statements of cash flow for Parent and its Subsidiaries (on a consolidated basis) prepared on a monthly basis for the period through the end of the 2006 fiscal year and thereafter, on an annual basis for each fiscal year through the end of the 2009 fiscal year, in each case with the results and assumptions set forth in all of such projections in form and substance satisfactory to Agent;
(f) Agent shall have received, in form and substance satisfactory to Agent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements (other than from the lessors of retail store locations) and Credit Card Processor agreements from all of Borrower’s Credit Card ProcessorsAcknowledgments;
(eg) the Closing Date Excess Availability as determined by LenderAgent, as of the date hereof, shall be not less than 20% of the Borrowing Base computed as of the date hereof $25,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(fh) all deposit accounts of Borrower Agent shall be maintained with Lenderhave received, in each case subject to a Deposit Account Control Agreement in form and substance satisfactory to LenderAgent, a Deposit Account Control Agreement by and among Agent, duly authorized, executed and delivered by Parent and BancorpSouth Bank;
(gi) Lender Agent shall have received evidence, in form and substance satisfactory to LenderAgent, that Lender Agent has a valid perfected first priority security interest in all of the Collateral;
(hj) Lender Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of Borrower, the jurisdiction of the chief executive office of each Borrower and all Guarantor in such jurisdictions in which assets of Borrower are locatedas Agent shall request, which search results shall be in form and substance satisfactory to LenderAgent;
(k) Agent shall have received environmental audits of the Real Property to be subject to the Mortgage conducted by an independent environmental engineering firm acceptable to Agent, and in form, scope and methodology satisfactory to Agent, the results of which shall be satisfactory to Agent;
(l) Agent shall have received, in form and substance satisfactory to Agent, a valid and effective title insurance policy issued by a company and agent acceptable to Agent: (i) Lender insuring the priority, amount and sufficiency of the Mortgage, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Agent for protection of its interests;
(m) Agent shall have received originals of the shares of the stock certificates (if any) representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) and owned by Borrowerany Borrower or Guarantor, in each case together with stock powers duly executed in blank with respect thereto;
(jn) Lender Agent shall have received a Borrowing Base Certificate setting forth the Loans and Letters of Credit available to Borrowers as of the date hereof as completed in a manner satisfactory to Agent and duly authorized, executed and delivered on behalf of Borrowers;
(o) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee, such insurance ;
(p) Agent shall have received a written appraisal as to include business interruption coverage (including coverage the Inventory of Borrower’s website) Borrowers and product liability coverageGuarantors and the Baldwyn Real Property, in each case satisfactory by an appraiser acceptable to LenderAgent, in form, scope and methodology reasonably acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely;
(kq) Lender no material pending or threatened, litigation, proceeding, bankruptcy or insolvency, injunction, order or claims with respect to Borrowers and Guarantors shall exist;
(r) as of the date hereof and after giving effect to the transactions contemplated hereby, no defaults or events of default on any material Indebtedness or any other Material Contracts of Borrowers or Guarantors shall exist or have occurred and be continuing;
(s) Agent shall have received, in form and substance satisfactory to LenderAgent, such opinion letters of counsel to Borrower Borrowers and Guarantors with respect to the Financing Agreements and such other matters as Lender Agent may request;
(l) Lender shall have received evidence satisfactory to it that Borrower has not granted nor been granted any royalty agreements or licenses;
(m) Borrower shall have paid all fees and expenses required to be paid by it under the term of this Agreement provided that the aggregate amount paid by Borrower to Lender for attorneys’ fees incurred in connection with the closing of transactions rendered by this Agreement plus the expenses of the inventory appraisal and field examinations shall not exceed $50,000; and
(nt) This Agreement, the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation Each of Lender the following is a condition precedent to make Agent and Lenders making the initial Loans or to issue and providing the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedenthereunder:
(a) all requisite corporate action and proceedings in connection with the transactions contemplated by this Agreement and the other Financing Agreements shall be satisfactory in form and substance to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation)Authorities;
(b) no material adverse change shall have occurred in the assets, business or prospects financial condition of Borrower Borrowers and their Subsidiaries, taken as a whole, since the date of Lender’s Agent's latest field examination (not including for this purpose the field review referred to in clause (c) below) and no change or event shall have occurred which would impair the ability of Borrower Borrowers or any Obligor to perform its their obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender Agent to enforce the Obligations or realize upon the Collateral;
(c) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, including current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof or such earlier date as Lender may agreehereof;
(d) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, including Collateral Access Agreements by owners and Credit Card Processor agreements from all lessors of Borrower’s Credit Card Processorsleased premises of Borrower and by warehouses at which Collateral is located;
(e) the Closing Date Excess Availability as determined by LenderAgent, as of the date hereof, shall be not less than 20% of the Borrowing Base computed as of the date hereof $8,500,000 after giving effect to the initial Loans made or to be made Purchase Agreements and Letters of Credit issued or to be issued in connection with the initial transactions hereundercontemplated thereunder;
(f) all deposit accounts of Borrower shall be maintained with Lender, in each case subject to a Deposit Account Control Agreement in form and substance satisfactory to Lender;
(g) Lender Agent shall have received evidencereceived, in form and substance satisfactory to LenderAgent, that Lender Deposit Account Control Agreements by and among Agent, each Borrower and each bank where such Borrower has a valid perfected first priority security interest deposit account, in all of each case, duly authorized, executed and delivered by such bank and such Borrower (or Agent shall be the Collateralbank's customer with respect to such deposit account as Agent may specify);
(hg) Lender Agent shall have received and reviewed lien and judgment UCC search results for the jurisdiction of organization of Borrower, the jurisdiction of the chief executive office of Borrower and all jurisdictions in the United States and Canada which assets of each Borrower and Guarantor are located, which search results shall be in form and substance satisfactory to LenderAgent;
(h) Agent shall have received, in form and substance satisfactory to Agent, the Junkfood Subordination Agreement, the Soffe Subordination Agreement and the Factor Intercreditor Agreement duly executed and delivered by the parties thereto;
(i) Lender Agent shall have received, in form and substance satisfactory to Agent, a Uniform Commercial Code filing authorization letter, duly executed and delivered by each Borrower and the domestic Subsidiaries of each Borrower, together with appropriate financing statements on Form UCC-1 or Form UCC-3, as applicable, duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect Agent's liens in and to the collateral of such domestic Subsidiaries of Borrower, and Agent shall have received originals confirmation of the shares filing of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of Borrower and owned by Borrower, in each case together with stock powers duly executed in blank with respect theretosuch financing statements;
(j) Lender Agent shall have received, reviewed and approved the duly executed amendment to the Factor Documents;
(k) Agent shall have received, in form and substance satisfactory to Agent, such opinion letters of counsel to Borrowers and Guarantors with respect to this Agreement, the other Financing Agreements and the security interests and liens of Agent and Lenders with respect to the Collateral and such other matters as Agent may request;
(l) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee, such insurance to include business interruption coverage (including coverage of Borrower’s website) and product liability coverage, in each case satisfactory to Lender;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and such other matters as Lender may request;
(l) Lender shall have received evidence satisfactory to it that Borrower has not granted nor been granted any royalty agreements or licenses;
(m) Borrower Agent shall have received, reviewed and approved final copies of the fully executed Junkfood Asset Purchase Agreement, all exhibits and schedules thereto and all other Junkfood Purchase Documents, including the Junkfood Seller Note, and Agent shall have received assurances satisfactory to Agent that the Junkfood Acquisition has been, or concurrently with the funding of the initial Loans hereunder will be, consummated in accordance with the terms and conditions thereof;
(n) Agent shall have completed its legal and business due diligence with respect to Borrowers and Junkfood, including Agent's receipt and review of (i) updated monthly financial projections of Borrowers, including statements of income and cash flows, balance sheets and Excess Availability projections and (ii) all third-party due diligence with respect to Borrowers and Junkfood;
(o) Agent shall have received a certificate, together with supporting documentation, satisfactory to it from one or more knowledgeable senior officers of Borrowers that, at the time of and after giving effect to the financing under this Agreement and the Junkfood Acquisition, Borrowers are Solvent;
(p) Agent shall have received, reviewed and found acceptable fully paid all fees and expenses required endorsements to Agent's mortgagee title insurance policies (or binding commitments to issue endorsements to Agent's mortgagee title insurance policies, marked to Agent's satisfaction to evidence the form of such endorsements to be paid delivered after the Closing Date) with respect to the title insurance policies that insure the Mortgages (other than the Alabama Mortgage and other than the Mortgage covering Real Property located in Catawba County, North Carolina (the "Catawba County Mortgage")) to create a valid lien on all Real Property subject thereto, which endorsements (and commitments therefor) shall give effect to the transactions contemplated by it this Agreement, shall "down-date" the effective date of the title insurance policy (or policies) to which they relate and shall not have a specific survey exception;
(q) No Default or Event of Default shall exist or have occurred and be continuing under the term of this Agreement provided that the aggregate amount paid by Borrower to Lender for attorneys’ fees incurred in connection with the closing of transactions rendered by this Agreement plus the expenses of the inventory appraisal and field examinations shall not exceed $50,000Existing Soffe Loan Agreement; and
(nr) This Agreement, the other Financing Agreements and all instruments and documents hereunder and thereunder hereunder, including amendments to the Mortgages, shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender Lenders to make the initial Loans or of Issuing Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) Agent shall have received, in form and substance satisfactory to Agent, all releases, terminations and such other documents as Agent may reasonably request to evidence and effectuate the termination by the Existing Lenders of their respective financing arrangements with Borrowers and Guarantors and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and Guarantor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or Guarantor, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or Guarantor in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be reasonably satisfactory in form and substance to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have reasonably requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation or formation of each Borrower and Guarantor certified by the applicable Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of Borrowereach Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(bc) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers since the date of LenderAgent’s latest field examination (not including for this purpose the field review referred to in clause (cd) below) and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor Guarantor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon vipon the Collateral;
(cd) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may reasonably require in accordance with Agent’s customary practices and procedures to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-roll- forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be reasonably necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three five (35) Business Days prior to the date hereof or such earlier date as Lender Agent may agree;
(d) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements and Credit Card Processor agreements from all of Borrower’s Credit Card Processors;
(e) the Closing Date Excess Availability as determined by Lender, as of the date hereof, shall be not less than 20% of the Borrowing Base computed as of the date hereof after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(f) all deposit accounts of Borrower shall be maintained with Lender, in each case subject to a Deposit Account Control Agreement in form and substance satisfactory to Lender;
(g) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all of the Collateral;
(h) Lender shall have received and reviewed lien and judgment search results for the jurisdiction of organization of Borrower, the jurisdiction of the chief executive office of Borrower and all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Lender;
(i) Lender shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of Borrower and owned by Borrower, in each case together with stock powers duly executed in blank with respect thereto;
(j) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee, such insurance to include business interruption coverage (including coverage of Borrower’s website) and product liability coverage, in each case satisfactory to Lender;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and such other matters as Lender may request;
(l) Lender shall have received evidence satisfactory to it that Borrower has not granted nor been granted any royalty agreements or licenses;
(m) Borrower shall have paid all fees and expenses required to be paid by it under the term of this Agreement provided that the aggregate amount paid by Borrower to Lender for attorneys’ fees incurred in connection with the closing of transactions rendered by this Agreement plus the expenses of the inventory appraisal and field examinations shall not exceed $50,000; and
(n) This Agreement, the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Sources: Loan and Security Agreement (Latrobe Specialty Metals, Inc.)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender the Banks to make the initial Loans or and to issue the initial Letters Letter of Credit hereunder is shall be subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each fulfillment of the following conditions precedentprecedent on or before the Closing Date in a manner satisfactory to the Banks:
(a) all requisite corporate action Each Bank shall have received the following:
(i) A copy of resolutions approving this Agreement and proceedings authorizing the transactions contemplated in connection with this Agreement and the other Financing Agreements Loan Papers, duly adopted by the Board of Directors of each of the Companies, accompanied by a certificate of the Secretary or Assistant Secretary of the respective Company, dated the date hereof, that such copy is a true and correct copy of resolutions duly adopted at a meeting (which may be held if permitted by applicable Law and, if required by such Law, by the bylaws of the respective Company, by conference telephone or similar communications equipment by means of which all persons participating in a meeting can hear each other) of, or by the unanimous written consent of (if permitted by applicable Law and, if required by such Law, by the bylaws of the respective Company), the Board of Directors of the respective Company, and that such resolutions have not been amended, modified, repealed, or revoked in any respect, and are in full force and effect as of the date hereof:
(ii) A certificate of incumbency of all officers of Borrower and each Company who will be authorized to execute or attest this Agreement or any document delivered pursuant hereto on behalf of Borrower or such Company, dated the date hereof; executed by the Secretary or Assistant Secretary of Borrower or such Company.
(iii) The articles of incorporation of Borrower and each Company certified by the Secretary of State of the state of its incorporation and dated a current date.
(iv) The bylaws of Borrower and each Company certified by its Secretary or Assistant Secretary.
(v) Certificates of the appropriate government officials of the state of incorporation of Borrower and each Company as to its existence and, to the extent applicable, good standing and certificates of the appropriate government officials of each state in which Borrower and each Company is required to qualify to do business and where failure to so qualify could reasonably be expected to have a Material Adverse Effect, as to such Person’s qualification to do business and good standing in such state, all dated a current date.
(vi) Its Revolving Credit Note duly executed by Borrower.
(vii) A Guaranty Agreement (or ratification thereof, if applicable), in form and substance satisfactory to the Required Banks, appropriately executed and delivered by each of the Companies other than Borrower.
(viii) The fees due on the Closing Date in accordance with this Agreement.
(ix) A payoff letter from Bank of America, N.A. with respect to the payment in full of its loans under the Existing Credit Documents and the termination of its commitment thereunder.
(x) Such other documents as Administrative Agent or any Bank may reasonably request.
(b) The representations and warranties contained in Article IV of this Agreement shall be true and correct in all material respects on and as of such date with the same effect as if made on and as of such date.
(c) No Default or Potential Default, shall be in existence on such date or after giving effect to such initial Loans or Letter of Credit.
(d) All corporate and legal proceedings and all documents required to be completed and executed by the provisions of, and all instruments to be executed in connection with the transactions contemplated by this Agreement and any related agreements shall be satisfactory in form and substance to LenderAdministrative Agent and the Required Banks, and Lender Administrative Agent and the Banks shall have received all information and copies of all documents, including records of requisite corporate action proceedings, required by this Agreement and proceedings any related agreements to be executed or which Lender Administrative Agent or any Bank may reasonably have requested in connection therewith, such documents documents, where requested by Lender or its counsel appropriate, to be certified by appropriate proper corporate officers or Governmental Authority (and including a copy of the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation);
(b) no material adverse change shall have occurred in the assets, business or prospects of Borrower since the date of Lender’s latest field examination (not including for this purpose the field review referred to in clause (c) below) and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(c) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof or such earlier date as Lender may agree;
(d) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements and Credit Card Processor agreements from all of Borrower’s Credit Card Processors;governmental authorities.
(e) the Closing Date Excess Availability as determined by Lender, as of the date hereof, No legal proceeding shall be not less than 20% of the Borrowing Base computed as of the date hereof after giving effect pending or threatened against Borrower or any other Company by or before any, Tribunal which could reasonably be expected to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;have a Material Adverse Effect.
(f) all deposit accounts The consummation of Borrower shall be maintained with Lender, in each case subject to a Deposit Account Control Agreement in form and substance satisfactory to Lender;
(g) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all such Loans or issuance of the Collateral;
(h) Lender shall have received and reviewed lien and judgment search results for the jurisdiction such Letter of organization of Borrower, the jurisdiction of the chief executive office of Borrower and all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Lender;
(i) Lender shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of Borrower and owned by Borrower, in each case together with stock powers duly executed in blank with respect thereto;
(j) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee, such insurance to include business interruption coverage (including coverage of Borrower’s website) and product liability coverage, in each case satisfactory to Lender;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and such other matters as Lender may request;
(l) Lender shall have received evidence satisfactory to it that Borrower has not granted nor been granted any royalty agreements or licenses;
(m) Borrower shall have paid all fees and expenses required to be paid by it under the term of this Agreement provided that the aggregate amount paid by Borrower to Lender for attorneys’ fees incurred in connection with the closing of transactions rendered by this Agreement plus the expenses of the inventory appraisal and field examinations Credit shall not exceed $50,000; and
(n) This Agreement, the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lenderviolate any applicable provision of any Law.
Appears in 1 contract
Sources: Credit Agreement (Frozen Food Express Industries Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender Lenders to make the initial Loans or of Agent and Lenders to issue provide for the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) Agent shall have received, in form and substance satisfactory to Agent, a guaranty duly executed by each Guarantor covering all Obligations of Commerce Energy;
(b) any consent or approval of, or notice to, any Governmental Authority with respect to the transactions contemplated hereby shall have been duly obtained or given;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation of Borrower Commerce Energy and each Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower Commerce Energy and each Guarantor as is set forth herein and such document as shall set forth the organizational identification number of BorrowerCommerce Energy and each Guarantor, if one is issued in its jurisdiction of incorporation);
(bd) no material adverse change shall have occurred in the assets, business or prospects of Borrower Commerce Energy since the date of Lender’s Agent's latest field examination (not including for this purpose the field review referred to in clause (ce) below) and no change or event shall have occurred which would materially impair the ability of Borrower or any Obligor Commerce Energy and each Guarantor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(ce) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may reasonably require to determine the amount of Revolving Loans available to Borrower Commerce Energy (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof or such earlier date as Lender Agent may agree;
(df) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may reasonably deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements and Credit Card Processor agreements from all of Borrower’s Credit Card ProcessorsAgreements;
(eg) the Closing Date Excess Availability as determined by LenderAgent, as of the date hereof, shall be not less than 20% of the Borrowing Base computed as of the date hereof $15,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(fh) all deposit accounts of Borrower Agent shall be maintained with Lenderhave received, in each case subject to a Deposit Account Control Agreement in form and substance reasonably satisfactory to LenderAgent, Deposit Account Control Agreements and Investment Property Control Accounts (as applicable) by and among Agent, Commerce Energy and Guarantors, as the case may be and each bank or securities intermediary where any of Commerce Energy and Guarantors has a deposit or securities account, in each case, duly authorized, executed and delivered by such bank or securities intermediary and Borrower or Guarantors, as the case may be (or Agent shall be the bank's customer with respect to such deposit account as Agent may specify);
(gi) Lender Agent shall have received evidence, in form and substance reasonably satisfactory to LenderAgent, that Lender Agent has a valid perfected first priority security interest in all of the Collateral;
(hj) Lender Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of Borrowereach of Commerce Energy and Guarantors, the jurisdiction of the chief executive office of Borrower each of Commerce Energy and Guarantors and all jurisdictions in which assets of Borrower each of Commerce Energy and Guarantors are located, which search results shall be in form and substance satisfactory to LenderAgent;
(ik) Lender Agent shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of Borrower held by Commerce Energy or any Guarantor in Commerce Energy and owned by BorrowerSkipping Stone, in each case together with stock powers duly executed in blank with respect thereto;
(jl) Lender Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance reasonably satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee, such insurance to include business interruption coverage (including coverage of Borrower’s website) and product liability coverage, in each case satisfactory to Lender;
(km) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, such opinion letters of counsel to Borrower Commerce Energy and Guarantors with respect to the Financing Agreements and such other matters as Lender Agent may request;
(l) Lender shall have received evidence satisfactory to it that Borrower has not granted nor been granted any royalty agreements or licenses;
(m) Borrower shall have paid all fees and expenses required to be paid by it under the term of this Agreement provided that the aggregate amount paid by Borrower to Lender for attorneys’ fees incurred in connection with the closing of transactions rendered by this Agreement plus the expenses of the inventory appraisal and field examinations shall not exceed $50,000; and
(n) This Agreement, the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance satisfactory to LenderAgent.
Appears in 1 contract
Sources: Loan and Security Agreement (Commerce Energy Group Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender to make On the initial Loans or to issue the initial Letters of Credit hereunder is subject to the satisfaction ofClosing Date, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of Borrower shall have satisfied each of the following conditions precedentconditions:
(a) all requisite corporate action and proceedings in connection with this Agreement Borrower shall have paid to the Administrative Agent and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of Lenders the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall fees set forth the same complete corporate name of Borrower as is set forth herein or referenced in Section 3.04 and such document as shall set forth the organizational identification number of Borrowerany other accrued and unpaid fees, if one is issued in its jurisdiction of incorporation);
(b) no material adverse change shall have occurred in the assets, business out-of-pocket expenses or prospects of Borrower since the date of Lender’s latest field examination (not including for this purpose the field review referred to in clause (c) below) and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations commissions due hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(c) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Inventory through legal fees and expenses) related to due diligence performed by the date of Administrative Agent or in connection with the closing and test counts of the Inventory transactions contemplated by this Agreement.
(b) The indebtedness under the Existing Credit Agreement shall be repaid in full and terminated and the Administrative Agent shall have received a manner pay-off letter in form and substance satisfactory to Lendereach of them evidencing such repayment and termination.
(c) The Administrative Agent shall have completed, together with such supporting documentation as may be necessary or appropriateto its satisfaction, all legal, tax, business and other documents due diligence with respect to the business, assets, liabilities, operations and information that will enable Lender to accurately identify condition (financial or otherwise) of the Borrower and verify the Collateral), the results of which its Subsidiaries in each case shall be scope and determination satisfactory to Lender, not more than three (3) Business Days prior to the date hereof or such earlier date as Lender may agree;Administrative Agent in its sole discretion.
(d) Lender The Administrative Agent shall have receivedreceived the following, in form and substance reasonably satisfactory in all respects to the Lenders and (except for the Notes) in sufficient number for each Lender:
(i) the duly executed counterparts of this Agreement;
(ii) the duly executed Syndicated Notes and the duly executed Swing Line Note;
(iii) the duly executed Guaranty Agreements;
(iv) a duly executed certificate of Borrower, in substantially the form of EXHIBIT E attached hereto and appropriately completed, certifying that (i) the representations and warranties set forth in Article 5 hereof are true and correct on and as of such date with the same effect as though made on and as of such date, (ii) Borrower and the Guarantors are in compliance with all the terms and provisions set forth in this Agreement and the other Credit Documents or their respective parts to be observed or performed, (iii) on the Closing Date, no Default or Event of Default, will have occurred or be continuing and (iv) as of the Closing Date, there has been no materially adverse change in the financial condition of Borrower and its Subsidiaries as reflected in the pro forma financial statements delivered to the Administrative Agent prior to the Closing Date;
(v) a duly executed solvency certificate of Borrower and the Guarantors, in form and substance satisfactory to Lenderthe Lenders;
(vi) certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(vii) certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(viii) certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(ix) copies of all documents and instruments, including all consents, waiversauthorizations and filings, acknowledgments and other agreements from third persons which Lender may deem necessary required or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral advisable under any Requirement of Law or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements and Credit Card Processor agreements from all of Borrower’s Credit Card Processors;
(e) the Closing Date Excess Availability as determined by Lender, as any material Contractual Obligation of the date hereofCredit Parties, shall be not less than 20% of the Borrowing Base computed as of the date hereof after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(fx) certificates of insurance issued on behalf of insurers of Borrower and the Guarantors, describing in reasonable detail the types and amounts of insurance maintained by Borrower and the Guarantors;
(xi) the favorable opinion of ▇▇▇▇▇ Day, counsel to the Credit Parties, substantially in the form of EXHIBIT F-1 addressed to the Administrative Agent and each of the Lenders and the favorable opinion of in-house general counsel to the Credit Parties, substantially in the form of EXHIBIT F-2 addressed to the Administrative Agent and each of the Lenders;
(xii) all deposit accounts corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of Borrower the Credit Documents shall be maintained with Lender, in each case subject to a Deposit Account Control Agreement reasonably satisfactory in form and substance satisfactory to Lenderthe Required Lenders;
(gxiii) Lender shall have received evidenceprojected income statements, in form projected balance sheets, and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all projected statements of cash flow of the CollateralConsolidated Companies, all prepared in accordance with GAAP, on an annual basis for the five (5) year period following the Closing Date;
(hxiv) Lender shall have received and reviewed lien and judgment search results for the jurisdiction of organization of Borrower, the jurisdiction unaudited financial statements of the chief executive office of Borrower Consolidated Companies for all interim quarterly periods ending after September 30, 2004 and all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Lenderthrough the Closing Date;
(ixv) Lender shall have received originals of audited financial statements for the shares of Consolidated Companies for the stock certificates representing all of the issued and outstanding shares of the Capital Stock of Borrower and owned by Borrowerfiscal year ended December 31, in each case together with stock powers duly executed in blank with respect thereto;
(j) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee, such insurance to include business interruption coverage (including coverage of Borrower’s website) and product liability coverage, in each case satisfactory to Lender;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and such other matters as Lender may request;
(l) Lender shall have received evidence satisfactory to it that Borrower has not granted nor been granted any royalty agreements or licenses;
(m) Borrower shall have paid all fees and expenses required to be paid by it under the term of this Agreement provided that the aggregate amount paid by Borrower to Lender for attorneys’ fees incurred in connection with the closing of transactions rendered by this Agreement plus the expenses of the inventory appraisal and field examinations shall not exceed $50,0002003; and
(nxvi) This Agreement, a certificate of the other Financing Agreements chief financial officer of the Borrower as to the calculation of the Applicable Margin and all instruments Applicable Commitment Percentage as of the Closing Date after giving pro forma effect to the closing of the Facility and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lenderattaching the calculations thereof.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender Lenders to make the initial Loans or of Issuing Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) Agent shall have received, in form and substance reasonably satisfactory to Agent, all releases, terminations and such other documents as Agent may request to evidence and effectuate the termination of any existing financing arrangements with Borrowers and Guarantors and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and Guarantor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or Guarantor, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or Guarantor in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority;
(b) all requisite corporate or limited liability company action and proceedings (as applicable) in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate or limited liability company action and proceedings (as applicable) which Lender Agent may have requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate or limited liability company officers (as applicable )or Governmental Authority (and including a copy of the certificate of incorporation incorporation, articles of association, certificate of formation, limited liability agreement, limited partnership agreement or other organizational documents of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate corporate, limited liability company or partnership name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of Borrowereach Borrower or Guarantor, if one is issued in its jurisdiction of incorporationincorporation or formation, as applicable);
(bc) except as shall have been disclosed to Agent in writing prior to the date of this Agreement, no material adverse change Material Adverse Effect shall have occurred in the assets, business or prospects of Borrower Borrowers since the date of LenderAgent’s latest field examination (not including for this purpose the field review referred to in clause (cd) below) and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor Guarantor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(cd) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Inventory Accounts through the date of closing October 31, 2010 and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three (3) Business Days prior to the date hereof or such earlier date as Lender Agent may agree;
(de) Lender Agent shall have received, in form and substance satisfactory to LenderAgent, the balance sheet of Borrowers as of the period ended September 30, 2010;
(f) Agent shall have received, in form and substance reasonably satisfactory to Agent, all consents, waivers, acknowledgments and other agreements from third persons which Lender Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements and Credit Card Processor agreements from all of Borrower’s Credit Card ProcessorsAgreements;
(eg) the Closing Date Excess Availability as determined by LenderAgent, as of the date hereof, shall be not less than 20% of the Borrowing Base computed as of the date hereof $10,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(fh) all Agent shall have received a Borrowing Base Certificate setting forth the Borrowing Base as at the date set forth therein, which shall be completed in a manner reasonably satisfactory to Agent and duly authorized, executed and delivered by Borrowers, Guarantors and their respective Subsidiaries;
(i) Borrowers and Guarantors shall have (i) established deposit accounts of Borrower shall be maintained and cash management arrangements with Lender, in each case subject to a Deposit Account Control Agreement ▇▇▇▇▇ Fargo in form and substance satisfactory to LenderAgent as required by Section 6 hereof and Agent shall have received, in form and substance reasonably satisfactory to Agent, Deposit Account Control Agreements by and among Agent, each Borrower and Guarantor, as the case may be, and ▇▇▇▇▇ Fargo, with respect to each Blocked Account, and (ii) made arrangements for the termination of their existing cash management arrangements at Bank of Texas within sixty (60) days from the date hereof; except, that, such existing cash management arrangements may remain in effect from the date hereof up to the date that is sixty (60) days from the date hereof with respect to any deposit accounts maintained at Bank of Texas so long as Agent shall have received, in form and substance reasonably satisfactory to Agent, a Deposit Account Control Agreement by and among Agent, each Borrower and Guarantor, as the case may be, and Bank of Texas, duly authorized, executed and delivered by Agent, such Borrower or Guarantor, as the case may be, and Bank of Texas;
(gj) Lender Agent shall have received evidence, in form and substance reasonably satisfactory to LenderAgent, that Lender Agent has a valid perfected first priority security interest in all of the Collateral;
(hk) Lender Agent shall have received and reviewed lien and judgment search results for the jurisdiction of organization of Borrowereach Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrower Borrowers and Guarantors are located, which search results shall be in form and substance reasonably satisfactory to LenderAgent;
(il) Lender Agent shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares Equity Interests of the Capital Stock of each Borrower and Guarantor, and owned by Borrowerany Borrower or Guarantor, in each case together with stock or limited liability company powers (as applicable) duly executed in blank with respect thereto;
(jm) Lender Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance reasonably satisfactory to LenderAgent, and certificates of insurance policies and/or endorsements naming Lender Agent as loss payee; except, such insurance to include business interruption coverage (including coverage of Borrower’s website) and product liability coveragethat, on or before December 1, 2010, Agent shall have received, in each case satisfactory the form mutually agreed to Lenderas of the date hereof between Agent and Administrative Borrower, a copy of the issued and effective lenders’ loss payable endorsement naming Agent as lenders loss payee;
(kn) Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, such opinion letters of counsel to Borrower Borrowers and Guarantors with respect to the Financing Agreements and such other matters as Lender Agent may request;
(lo) Lender Agent shall have received evidence evidence, in form and substance reasonably satisfactory to it Agent, that Borrower has not granted nor been granted any royalty agreements Borrowers and Guarantors have received $15,000,000 in the aggregate from one or licensesmore cash equity capital contributions made on or prior to the date hereof by Sponsor;
(mp) Borrower Agent shall have paid all fees received, in form and expenses required substance reasonably satisfactory to be paid by it under the term Agent, an executed copy of this Agreement provided that the aggregate amount paid by Borrower to Lender for attorneys’ fees incurred in connection with the closing of transactions rendered by this Agreement plus the expenses an original or executed original counterparts of the inventory appraisal Customer 2 Factoring Agent Intercreditor Agreement, duly authorized, executed and field examinations delivered by the parties thereto;
(q) Agent shall not exceed $50,000have received, in form and substance reasonably satisfactory to Agent, copies of the Customer 2 Factoring Agent Discount Documents, duly authorized, executed and delivered by the parties thereto, including, without limitation, any UCC-1 financing statement between Customer 2 Factoring Agent, as secured party, and Lighting Science, as debtor;
(r) Agent shall have received, in form and substance satisfactory to Agent, a closing certificate, dated as of the date hereof, from the chief financial offer of Administrative Borrower confirming those matters set forth therein (the “Closing Officer’s Certificate”); and
(ns) This Agreement, the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to LenderAgent, in form and substance reasonably satisfactory to LenderAgent.
Appears in 1 contract
Sources: Loan and Security Agreement (Lighting Science Group Corp)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender the Banks to make the initial Loans or and to issue the initial Letters Letter of Credit hereunder is shall be subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each fulfillment of the following conditions precedentprecedent on or before the Closing Date in a manner satisfactory to the Banks:
(a) all requisite corporate action Each Bank shall have received the following:
(i) A copy of resolutions approving this Agreement and proceedings authorizing the transactions contemplated in connection with this Agreement and the other Financing Agreements Loan Papers, duly adopted by the Board of Directors of each of the Companies, accompanied by a certificate of the Secretary or Assistant Secretary of the respective Company, dated the date hereof, that such copy is a true and correct copy of resolutions duly adopted at a meeting (which may be held if permitted by applicable Law and, if required by such Law, by the Bylaws of the respective Company, by conference telephone or similar communications equipment by means of which all persons participating in a meeting can hear each other) of, or by the unanimous written consent of (if permitted by applicable Law and, if required by such Law, by the Bylaws of the respective Company),the Board of Directors of the respective Company, and that such resolutions have not been amended, modified, repealed, or revoked in any respect, and are in full force and effect as of the date hereof.
(ii) A certificate of incumbency of all officers of Borrower and each Company who will be authorized to execute or attest this Agreement or any document delivered pursuant hereto on behalf of Borrower or such Company, dated the date hereof, executed by the Secretary or Assistant Secretary of Borrower or such Company.
(iii) The articles of incorporation of Borrower and each Company certified by the Secretary of State of the state of its incorporation and dated a current date.
(iv) The bylaws of Borrower and each Company certified by its Secretary or Assistant Secretary.
(v) Certificates of the appropriate government officials of the state of incorporation of Borrower and each Company as to its existence and, to the extent applicable, good standing and certificates of the appropriate government officials of each state in which Borrower and each Company is required to qualify to do business and where failure to so qualify could reasonably be expected to have a Material Adverse Effect, as to such Person's qualification to do business and good standing in such state, all dated a current date.
(vi) Its Revolving Credit Note duly executed by Borrower.
(vii) A Guaranty Agreement (or ratification thereof, if applicable), in form and substance satisfactory to the Required Banks, appropriately executed and delivered by each of the Companies other than Borrower.
(A) The Security Agreement in substantially the form of Exhibit G and executed by the Borrower and each Company, granting to the Administrative Agent, for the benefit of the Banks, a security interest in all accounts, instruments, chattel paper, deposit accounts, documents, contracts, and inventory of the Companies; (B) The Vehicles Security Agreement in substantially the form of Exhibit H and executed by the Borrower and each Company, granting to the Collateral Agent, for the benefit of the Banks, a security interest in all Vehicles of the Company; (C) Code, tax and judgment Lien search reports listing all documentation on file against Borrower and each Company in such jurisdictions as the Administrative Agent shall require; and (D) authorized and executed documentation as the Administrative Agent may deem necessary to perfect or protect its Liens under its Security Agreement, including, without limitation: (1) financing statements under the Code and other applicable documentation under the Laws of any jurisdiction with respect to the perfection of Liens; and (2) endorsement and delivery of (y) the W&B Note, and (z) all promissory notes and other chattel paper and instruments payable to the Companies, or any of them, in an aggregate principal amount greater than $1,000,000, to the Administrative Agent pursuant to an endorsement in form and substance satisfactory to the Administrative Agent and the Required Banks.
(ix) Duly authorized and executed (where required) UCC-3 termination statements, mortgage releases and such other documentation as shall be necessary to terminate or release all existing Liens on the assets of Borrower or the Companies other than the Permitted Liens.
(x) One or more Memorandum of Negative Pledge Agreement in form and substance satisfactory to the Administrative Agent and the Required Banks, executed by the respective owners of any and all real property owned by any Company, for recording in the appropriate real property records of the respective counties where such real property is located.
(xi) A Contribution and Indemnification Agreement in form and substance satisfactory to the Administrative Agent and the Required Banks, executed by the Companies.
(xii) A certificate or certificates in form and substance satisfactory to the Administrative Agent and the Banks, dated the Closing Date and signed by the Chief Financial Officer of Parent and an authorized officer of each other Company, certifying as to the solvency of each Company as of the Closing Date and after giving effect to the transactions contemplated by the Loan Papers.
(xiii) Evidence that the credit agreement being refinanced by this Agreement has been terminated, all obligations and indebtedness thereunder have been paid and satisfied in full, all Liens securing such indebtedness have been released, and all letters of credit thereunder have been returned and cancelled, or the foregoing shall occur concurrently with the closing of this Agreement, or provision for the foregoing shall have been made to the satisfaction of the Administrative Agent and the Required Banks.
(xiv) Certificates of insurance summarizing the insurance policies of the Borrower and the Companies required by this Agreement and reflecting Administrative Agent as additional insured under such policies and as loss payee with respect to all policies covering Collateral.
(xv) An opinion of counsel for Borrower and the Companies, substantially in form and substance acceptable to the Required Banks and their counsel, covering favorably such matters relating or incident to the transactions contemplated by this Agreement and the other Loan Papers as the Required Banks may request.
(xvi) The fees due on the Closing Date in accordance with this Agreement.
(xvii) Such other documents as Administrative Agent or any Bank may reasonably request.
(b) The representations and warranties contained in Article IV of this Agreement shall be true and correct in all material respects on and as of such date with the same effect as if made on and as of such date.
(c) No Default or Potential Default, shall be in existence on such date or after giving effect to such initial Loans or Letter of Credit.
(d) All corporate and legal proceedings and all documents required to be completed and executed by the provisions of, and all instruments to be executed in connection with the transactions contemplated by, this Agreement and any related agreements shall be satisfactory in form and substance to LenderAdministrative Agent and the Required Banks, and Lender Administrative Agent and the Banks shall have received all information and copies of all documents, including records of requisite corporate action proceedings, required by this Agreement and proceedings any related agreements to be executed or which Lender Administrative Agent or any Bank may reasonably have requested in connection therewith, such documents documents, where requested by Lender or its counsel appropriate, to be certified by appropriate proper corporate officers or Governmental Authority (and including a copy of the certificate of incorporation of Borrower certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of Borrower as is set forth herein and such document as shall set forth the organizational identification number of Borrower, if one is issued in its jurisdiction of incorporation);
(b) no material adverse change shall have occurred in the assets, business or prospects of Borrower since the date of Lender’s latest field examination (not including for this purpose the field review referred to in clause (c) below) and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(c) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower (including, without limitation, current perpetual inventory records and/or roll-forwards of Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof or such earlier date as Lender may agree;
(d) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements and Credit Card Processor agreements from all of Borrower’s Credit Card Processors;governmental authorities.
(e) the Closing Date Excess Availability as determined by Lender, as of the date hereof, No legal proceeding shall be not less than 20% of the Borrowing Base computed as of the date hereof after giving effect pending or threatened against Borrower or any other Company by or before any, Tribunal which could reasonably be expected to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;have a Material Adverse Effect.
(f) all deposit accounts The consummation of Borrower shall be maintained with Lender, in each case subject to a Deposit Account Control Agreement in form and substance satisfactory to Lender;
(g) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all such Loans or issuance of the Collateral;
(h) Lender shall have received and reviewed lien and judgment search results for the jurisdiction such Letter of organization of Borrower, the jurisdiction of the chief executive office of Borrower and all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Lender;
(i) Lender shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of Borrower and owned by Borrower, in each case together with stock powers duly executed in blank with respect thereto;
(j) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee, such insurance to include business interruption coverage (including coverage of Borrower’s website) and product liability coverage, in each case satisfactory to Lender;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and such other matters as Lender may request;
(l) Lender shall have received evidence satisfactory to it that Borrower has not granted nor been granted any royalty agreements or licenses;
(m) Borrower shall have paid all fees and expenses required to be paid by it under the term of this Agreement provided that the aggregate amount paid by Borrower to Lender for attorneys’ fees incurred in connection with the closing of transactions rendered by this Agreement plus the expenses of the inventory appraisal and field examinations Credit shall not exceed $50,000; and
(n) This Agreement, the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lenderviolate any applicable provision of any Law.
Appears in 1 contract
Sources: Credit Agreement (Frozen Food Express Industries Inc)
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender to make the initial Loans or to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination of all liens and security interests upon the Collateral, or any of it except for the security interes and liens set forth on Schedule 8.4 to the Information Certificate;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of Borrowereach Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(bc) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers since the date of Lender’s 's latest field examination (not including for this purpose the field review referred to in clause (cd) below) and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor Guarantor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(cd) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Lender, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof or such earlier date as Lender may agree;
(de) Lender shall have received, in form and substance sub-stance satisfactory to Lender, all consents, waivers, acknowledgments acknowl-edgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements and Credit Card Processor agreements from all of Borrower’s Credit Card ProcessorsAgreements;
(ef) the Closing Date Excess Availability as determined by Lender, as of the date hereof, shall be not less than 20% of the Borrowing Base computed as of the date hereof $4,000,000 after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(fg) all deposit accounts of Borrower Lender shall be maintained with Lenderhave received, in each case subject to a Deposit Account Control Agreement in form and substance satisfactory to Lender, Deposit Account Control Agreements by and among Lender, each Borrower and Guarantor, as the case may be and each bank where such Borrower (or Guarantor) has a deposit account, in each case, duly authorized, executed and delivered by such bank and Borrower or Guarantor, as the case may be (or Lender shall be the bank’s customer with respect to such deposit account as Lender may specify);
(gh) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all of the Collateral;
(hi) Lender shall have received and reviewed lien and judgment search results for the jurisdiction of organization of Borrowereach Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrower Borrowers and Guarantors are located, which search results shall be in form and substance satisfactory to Lender;
(i) Lender shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of Borrower and owned by Borrower, in each case together with stock powers duly executed in blank with respect thereto;
(j) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee, such insurance to include business interruption coverage (including coverage of Borrower’s website) and product liability coverage, in each case satisfactory to LenderIntentionally omitted;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and such other matters as Lender may request;
(l) Lender shall have received evidence satisfactory to it that Borrower has not granted nor been granted any royalty agreements or licenses;
(m) Borrower shall have paid all fees and expenses required to be paid by it under the term of this Agreement provided that the aggregate amount paid by Borrower to Lender for attorneys’ fees incurred in connection with the closing of transactions rendered by this Agreement plus the expenses of the inventory appraisal and field examinations shall not exceed $50,000; and
(n) This Agreement, the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. The obligation of Lender Lenders to make the initial Loans or of Issuing Bank to issue the initial Letters of Credit hereunder is subject to the satisfaction of, or waiver of, immediately prior to or concurrently with the making of such Loan or the issuance of such Letter of Credit of each of the following conditions precedent:
(a) Agent shall have received, in form and substance satisfactory to Agent, all releases, terminations and such other documents as Agent may request to evidence and effectuate the termination by the Existing Lenders of their respective financing arrangements with Borrowers and Guarantors;
(b) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to LenderAgent, and Lender Agent shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender Agent may have requested in connection therewith, such documents where requested by Lender Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of Borrowereach Borrower or Guarantor, if one is issued in its jurisdiction of incorporation);
(bc) no material adverse change shall have occurred in the assets, business or prospects of Borrower Borrowers since the date of LenderAgent’s latest field examination (not including for this purpose the field review referred to in clause (cd) below) and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor Guarantor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
(cd) Lender Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Lender Agent may require to determine the amount of Revolving Loans available to Borrower Borrowers (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to LenderAgent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to LenderAgent, not more than three seven (37) Business Days prior to the date hereof or such earlier date as Lender Agent may agree;
(d) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements and Credit Card Processor agreements from all of Borrower’s Credit Card Processors;
(e) the Closing Date Excess Availability as determined by Lender, as of the date hereof, shall be not less than 20% of the Borrowing Base computed as of the date hereof after giving effect to the initial Loans made or to be made and Letters of Credit issued or to be issued in connection with the initial transactions hereunder;
(f) all deposit accounts of Borrower shall be maintained with Lender, in each case subject to a Deposit Account Control Agreement in form and substance satisfactory to Lender;
(g) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first priority security interest in all of the Collateral;
(h) Lender shall have received and reviewed lien and judgment search results for the jurisdiction of organization of Borrower, the jurisdiction of the chief executive office of Borrower and all jurisdictions in which assets of Borrower are located, which search results shall be in form and substance satisfactory to Lender;
(i) Lender shall have received originals of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of Borrower and owned by Borrower, in each case together with stock powers duly executed in blank with respect thereto;
(j) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee, such insurance to include business interruption coverage (including coverage of Borrower’s website) and product liability coverage, in each case satisfactory to Lender;
(k) Lender shall have received, in form and substance satisfactory to Lender, such opinion letters of counsel to Borrower with respect to the Financing Agreements and such other matters as Lender may request;
(l) Lender shall have received evidence satisfactory to it that Borrower has not granted nor been granted any royalty agreements or licenses;
(m) Borrower shall have paid all fees and expenses required to be paid by it under the term of this Agreement provided that the aggregate amount paid by Borrower to Lender for attorneys’ fees incurred in connection with the closing of transactions rendered by this Agreement plus the expenses of the inventory appraisal and field examinations shall not exceed $50,000; and
(n) This Agreement, the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, in form and substance satisfactory to Lender.
Appears in 1 contract