Conditions Precedent to Initial Loans and Letters of Credit. At the time of the making of the initial Loans hereunder and issuance or deemed issuance of the Letters of Credit on the Closing Date, all obligations of Borrowers hereunder incurred prior to the initial Loans (including, without limitation, any Borrower's obligations to reimburse the fees and expenses of counsel to the Agents and any fees and expenses payable to the Agents and the Lenders as previously agreed with any Borrower) for which the Agent has delivered to any Borrower an invoice not less than five (5) Business Day prior to the date of such initial Loans, shall have been paid in full, and the Agents shall have received the following, in form and substance reasonably satisfactory in all respects to the Agents: (a) the duly executed counterparts of this Agreement; (b) the duly completed Revolving Notes evidencing the Revolving Loan Commitments, the duly executed Term Notes and the duly executed Swing Line Note; (c) the duly executed Guaranty Agreements and Contribution Agreement; (d) the duly executed Security Agreements and accompanying Uniform Commercial Code financing statements relating thereto; (e) the duly executed Trademark Security Agreements and Patent Security Agreement; (f) the duly executed Pledge Agreements accompanied, to the extent relevant under applicable law, by (i) all stock certificates representing the Pledged Stock, (ii) stock powers for those shares duly executed in blank, (iii) Uniform Commercial Code financing statements relating thereto, and (iv) any other documentation requested by the Collateral Agent in order to assure the perfection of a first priority lien in such Pledged Stock in favor of the Collateral Agent for the benefit of the Lenders; (g) a duly executed certificate of a senior officer of the Parent certifying that each of the Credit Parties, after giving effect to the transactions contemplated by this Agreement, will be Solvent, in form and substance satisfactory to the Agent; (h) the duly executed Bond Pledge Agreement accompanied, to the extent relevant under applicable law, by (i) the original Ad Valorem Bonds, (ii) bond powers for the Ad Valorem Bonds duly executed in blank, (iii) Uniform Commercial Code financing statements relating thereto, and (iv) any other documentation requested by the Collateral Agent in order to assure the perfection of a first priority lien in such Ad Valorem Bonds in favor of the Collateral Agent for the benefit of the Lenders; (i) duly executed Mortgages with respect to all Real Property, together with appropriate Uniform Commercial Code financing statements; (j) title insurance commitments with respect to the Real Property subject to the Mortgages in an amount and in a form reasonably satisfactory to the Collateral Agent; (k) copies of the as-built surveys of the Real Property subject to the Mortgages, certified to the Collateral Agent, in a form reasonably satisfactory to the Collateral Agent, accompanied by surveyor's certificates in a form reasonably satisfactory to the Collateral Agent; (l) copies of the Phase I and Phase II environmental reports obtained by the Parent with respect to the Real Property owned by Alamac disclosing only such matters as may be reasonably acceptable to the Agents and the Lenders; (m) a duly executed closing certificate of the Borrowers in substantially the form of Exhibit G attached hereto and appropriately completed; (n) certificates of the Secretary or Assistant Secretary of each of the Credit Parties (or, in the case of any Credit Party which is a partnership, a comparable officer of its general partner) attaching and certifying copies of the resolutions of the boards of directors (or, in the case of any partnership, the comparable governing body of such entity) of the Credit Parties, authorizing as applicable (i) the execution, delivery and performance of the Credit Documents, and (ii) the granting of the pledges and security interests granted pursuant to the Security Documents; (o) certificates of the Secretary or an Assistant Secretary of each of the Credit Parties (or, in the case of any partnership, a comparable officer of its general partner) 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; (p) certified copies of the certificate or articles of incorporation of each Credit Party (or comparable organizational document of each Credit Party which is a partnership), together with certificates of good standing or existence, as may be available from the Secretary of State (or comparable office or registry for each Credit Party which is a partnership) of the jurisdiction of incorporation or organization of such Credit Party; (q) examination reports from the Uniform Commercial Code records of each of the jurisdictions listed on Schedule 5.01 hereto, in each case showing no outstanding liens or security interests granted by any Credit Party other than (x) Liens permitted by Section 8.02, and (y) Liens in favor of the Collateral Agent; (r) copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder and the consummation of the Transaction, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired; (s) certified copies of the Intercompany Loan Documents; (t) acknowledgments from National Registered Agents, Inc. as to its appointment as agent for service of process for the various Credit Parties; (u) certified copies of indentures, credit agreements, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.01(b), in any single case in an amount not less than $1,000,000; (v) certificates, reports and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans and other compensation and employee benefit plans; (w) certificates, reports, environmental audits and investigations, and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto; (x) certificates, reports and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies; (y) a summary, set forth in format and detail acceptable to the Agents, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies accompanied by the insurance certificates naming the Collateral Agent as loss payee and additional insured as may be required by the terms of the Security Documents; (z) the favorable opinion of Bass, Berr▇ & ▇ims ▇▇▇, counsel to the Credit Parties, substantially in the form of Exhibit H-1, and (ii) Currothers & Roth, ▇.A. special North Carolina counsel to the Agents and the Lenders, substantially in the form of Exhibit H-2, in each case addressed to the Agents and each of the Lenders, and covering such other matters as either Agent or any Lender may reasonably request; (aa) a copy of the Alamac Acquisition Agreement, accompanied by the certificate of a senior officer of the Parent as to the consummation of the Alamac Acquisition and the other transactions contemplated by the Alamac Acquisition Agreement and certain other matters, together with copies of the documents required to be delivered pursuant to the Alamac Acquisition Agreement, together with the certificate of a senior officer of the Parent as to the accuracy thereof; (bb) a duly executed Assignment of Purchase Agreement, acknowledged by the Sellers; (cc) a letter from Weil Gots▇▇▇▇ & ▇ang▇▇, ▇▇unsel to the Seller, authorizing the Agents and the Lenders to rely upon the opinions delivered by such law firm to the Seller in connection with the Alamac Acquisition; (dd) a copy of the Senior Subordinated Note Indenture, accompanied by a certificate of a senior officer of the Parent as to the consummation of the offering of the Senior Subordinated Notes and the receipt of gross proceeds thereof in an amount of not less than $125,000,000; (ee) a duly executed initial Borrowing Base Certificate; (ff) written direction from the Borrowers to the Agent regarding the disbursement of the proceeds of the Term Loans and the initial Revolving Loans to be made on the Closing Date; (gg) evidence satisfactory to the Agent of the repayment of all other Indebtedness of the Consolidated Companies (including Alamac Holdings and its Subsidiaries) other than Indebtedness permitted by the terms of this Agreement; (hh) the Letter of Credit Agreement Amendment; and (ii) such other documents, opinions, certificates and agreements as the Agents may request.
Appears in 1 contract
Sources: Credit Agreement (Dyersburg Corp)
Conditions Precedent to Initial Loans and Letters of Credit. At the time The obligation of the making of Lender to make the initial Loans hereunder and issuance or deemed issuance of the Letters Issuing Bank to issue any Letter of Credit on or after the date hereof is subject to the satisfaction of the following conditions precedent on or prior to the Closing Date, all obligations of Borrowers hereunder incurred prior to the initial Loans :
(including, without limitation, any Borrower's obligations to reimburse the fees and expenses of counsel to the Agents and any fees and expenses payable to the Agents and the Lenders as previously agreed with any Borrowera) for which the Agent has delivered to any Borrower an invoice not less than five (5) Business Day prior to the date of such initial Loans, shall have been paid in full, and the Agents The Lender shall have received the followingfollowing agreements, documents, certificates and opinions in form and substance reasonably satisfactory in all respects to the AgentsLender and duly executed and delivered by the parties thereto:
(ai) the duly executed counterparts of this This Agreement;
(bii) the duly completed The Revolving Notes evidencing the Revolving Loan Commitments, the duly executed Term Notes and the duly executed Swing Line Credit Note;
(ciii) the duly executed Guaranty Agreements and Contribution AgreementThe Equipment Loan Note;
(div) Amendments to the duly executed Security Agreements Arizona Mortgage and accompanying Uniform Commercial Code financing statements relating theretothe Florida Mortgage, and corresponding title insurance endorsements;
(ev) Amendments to UCC financing statements covering the duly executed Trademark Security Agreements and Patent Security AgreementCollateral;
(fvi) the duly executed Pledge Agreements accompanied, to the extent relevant under applicable law, by (i) all stock certificates representing the Pledged Stock, (ii) stock powers for those shares duly executed in blank, (iii) Uniform Commercial Code financing statements relating thereto, The Borrower's Lien and (iv) any other documentation requested by the Collateral Agent in order to assure the perfection of a first priority lien in such Pledged Stock in favor of the Collateral Agent for the benefit of the LendersPossession Affidavit;
(gvii) a duly executed certificate Certificates of a senior officer of the Parent certifying that each of the Credit Parties, after giving effect to the transactions contemplated by this Agreement, will be Solvent, in form and substance satisfactory to the Agentinsurance or insurance binders evidencing compliance with Section 5.3(b) hereof;
(hviii) the duly executed Bond Pledge Agreement accompanied, to the extent relevant under applicable law, Notice of Borrowing or Conversion signed by (i) the original Ad Valorem Bonds, (ii) bond powers for the Ad Valorem Bonds duly executed in blank, (iii) Uniform Commercial Code financing statements relating thereto, and (iv) any other documentation requested by the Collateral Agent in order to assure the perfection of a first priority lien in such Ad Valorem Bonds in favor Responsible Officer as of the Collateral Agent for the benefit of the LendersClosing Date;
(iix) duly executed Mortgages with respect to all Real Property, together with appropriate Uniform Commercial Code financing statements;
(j) title insurance commitments with respect to the Real Property subject to the Mortgages in an amount and in a form reasonably satisfactory to the Collateral Agent;
(k) copies of the as-built surveys of the Real Property subject to the Mortgages, certified to the Collateral Agent, in a form reasonably satisfactory to the Collateral Agent, accompanied by surveyor's certificates in a form reasonably satisfactory to the Collateral Agent;
(l) copies of the Phase I and Phase II environmental reports obtained by the Parent with respect to the Real Property owned by Alamac disclosing only such matters as may be reasonably acceptable to the Agents and the Lenders;
(m) a duly executed closing A certificate of the Borrowers in substantially the form of Exhibit G attached hereto and appropriately completed;
(n) certificates of the Secretary or Assistant Secretary of each of the Credit Parties (or, in the case of any Credit Party which is a partnership, a comparable officer of its general partner) attaching and certifying copies of the resolutions of the boards of directors (or, in the case of any partnership, the comparable governing body of such entity) of the Credit Parties, authorizing as applicable (i) the execution, delivery and performance of the Credit Documents, and (ii) the granting of the pledges and security interests granted pursuant to the Security Documents;
(o) certificates of the Secretary or an Assistant Secretary of each the Borrower with respect to resolutions of its Board of Directors authorizing the execution and delivery of the Credit Parties (orLoan Documents and identifying the officer(s) authorized to execute, in the case of any partnershipdeliver and take all other actions required under this Agreement, a comparable officer of its general partner) certifying (i) the name, title and true signature of each officer providing specimen signatures of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(p) certified copies of the certificate or articles of incorporation of each Credit Party (or comparable organizational document of each Credit Party which is a partnershipofficer(s), together with certificates of good standing or existence, as may be available from the Secretary of State (or comparable office or registry for each Credit Party which is a partnership) of the jurisdiction of incorporation or organization of such Credit Party;
(q) examination reports from the Uniform Commercial Code records of each of the jurisdictions listed on Schedule 5.01 hereto, in each case showing no outstanding liens or security interests granted by any Credit Party other than (x) Liens permitted by Section 8.02, and (y) Liens in favor of the Collateral Agent;
(r) copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder and the consummation of the Transaction, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(s) certified copies of the Intercompany Loan Documents;
(t) acknowledgments from National Registered Agents, Inc. as to its appointment as agent for service of process for the various Credit Parties;
(u) certified copies of indentures, credit agreements, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.01(b), in any single case in an amount not less than $1,000,000;
(v) certificates, reports and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans and other compensation and employee benefit plans;
(w) certificates, reports, environmental audits and investigations, and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(x) certificatesThe Certificate of Incorporation of the Borrower and all amendments and supplements thereto, reports as filed in the office of the Secretary of State of its jurisdiction of incorporation, certified by said Secretary of State as being a true and other information correct copy thereof;
(xi) The By-laws of the Borrower and all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary of the Borrower as being a true and correct copy thereof;
(xii) A certificate of the Agents may request from any Consolidated Company Secretary of State of the Borrower's jurisdiction of incorporation as to legal existence and good standing of the Borrower in order to satisfy such state;
(xiii) A certificate of the Lenders Secretaries of State of each state in which the Borrower is doing business as to the absence due qualification and good standing of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated CompaniesBorrower as a foreign corporation in such states;
(yxiv) a summary, set forth in format and detail acceptable An opinion addressed to the Agents, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies accompanied by the insurance certificates naming the Collateral Agent as loss payee and additional insured as may be required by the terms of the Security Documents;
(z) the favorable opinion of Bass, BerrLender from Bing▇▇▇ & ▇ims ▇▇▇ ▇▇▇, counsel to the Credit Parties, substantially in Borrower;
(xv) A certificate of the form chief financial officer of Exhibit H-1, and (ii) Currothers & Roth, ▇.A. special North Carolina counsel the Borrower as to the Agents and the Lenders, substantially in the form of Exhibit H-2, in each case addressed to the Agents and each solvency of the LendersBorrower, the accuracy of the Borrower's representations and covering warranties and such other matters as either Agent or any the Lender may reasonably request;
(aa) a copy of the Alamac Acquisition Agreement, accompanied by the certificate of a senior officer of the Parent as to the consummation of the Alamac Acquisition and the other transactions contemplated by the Alamac Acquisition Agreement and certain other matters, together with copies of the documents required to be delivered pursuant to the Alamac Acquisition Agreement, together with the certificate of a senior officer of the Parent as to the accuracy thereof;
(bb) a duly executed Assignment of Purchase Agreement, acknowledged by the Sellers;
(cc) a letter from Weil Gots▇▇▇▇ & ▇ang▇▇, ▇▇unsel to the Seller, authorizing the Agents and the Lenders to rely upon the opinions delivered by such law firm to the Seller in connection with the Alamac Acquisition;
(dd) a copy of the Senior Subordinated Note Indenture, accompanied by a certificate of a senior officer of the Parent as to the consummation of the offering of the Senior Subordinated Notes and the receipt of gross proceeds thereof in an amount of not less than $125,000,000;
(ee) a duly executed initial Borrowing Base Certificate;
(ff) written direction from the Borrowers to the Agent regarding the disbursement of the proceeds of the Term Loans and the initial Revolving Loans to be made on the Closing Date;
(gg) evidence satisfactory to the Agent of the repayment of all other Indebtedness of the Consolidated Companies (including Alamac Holdings and its Subsidiaries) other than Indebtedness permitted by the terms of this Agreement;
(hh) the Letter of Credit Agreement Amendment; and
(iixvi) such Such other documents, opinionsinstruments, opinions and certificates and agreements completion of such other matters, as the Agents Lender may requestreasonably deem necessary or appropriate.
(b) No litigation, arbitration, proceeding or investigation shall be pending or threatened which questions the validity or legality of the transactions contemplated by any Loan Document or seeks a restraining order, injunction or damages in connection therewith, or which, in the judgment of the Lender, might adversely affect the transactions contemplated hereby or might have a materially adverse effect on the assets, business, financial condition or prospects of the Borrower taken as a whole.
(c) All necessary filings and recordings against the Collateral shall have been completed and the Lender's liens on the Collateral shall have been perfected, as contemplated by the Security Documents.
(d) The Borrower shall have paid to the Lender all fees required to be paid hereunder (including pursuant to Section 2.5(c) hereof) on or prior to the Closing Date.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. At the time Each of the following is a condition precedent to Agent and Lenders making of the initial Loans hereunder and issuance or deemed issuance of each Issuing Bank providing the initial Letters of Credit on the Closing Datehereunder:
(a) Agent shall have received all financial information, all obligations of Borrowers hereunder incurred projections, budgets, business plans, cash flows and such other information as Agent and Syndication Agent shall have requested prior to the initial date hereof, including (i) projected quarterly consolidated balance sheets, income statements, statements of cash flows and availability (including the Borrowing Base) of Obligors for the period through the fiscal year ending on or about January 31, 2012, (ii) projected annual consolidated balance sheets, income statements, statements of cash flows and availability (including the Borrowing Base) of Obligors through the fiscal year ending on or about January 31, 2014, in each case as to the projections described in clauses (i) and (ii), with the results and assumptions set forth in all of such projections in form and substance satisfactory to Agent and Syndication Agent, and an opening pro forma balance sheet for Obligors in form and substance satisfactory to Agent and Syndication Agent, and (iii) any updates or modifications to the projected financial statements of Obligors received by Agent prior to the date hereof, in each case in form and substance satisfactory to Agent and Syndication Agent;
(b) Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Agent may require to determine the amount of Loans available to Borrowers (including, without limitation, any Borrower's obligations current agings of receivables, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date hereof and test counts of the Inventory in a manner satisfactory to reimburse Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Agent to accurately identify and verify the fees Collateral), the results of which in each case shall be satisfactory to Agent;
(c) Agent shall have received, at the expense of Borrowers, a written report or appraisal as to the Inventory of Obligors in form, scope and expenses methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely;
(d) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Agent, and Lenders shall have received all information and copies of all documents, including records of requisite corporate, and other action and proceedings which Agent may have reasonably requested in connection therewith, such documents where requested by Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the Agents certificate of incorporation, formation or other organization document of any of Borrowers certified by the Secretary of State (or equivalent Governmental Authority);
(e) no material adverse change shall have occurred in the assets, businesses or prospects of Obligors, taken as a whole, since the date of the commencement of Agent’s latest field examination and no change or event shall have occurred which would impair the ability of Obligors, taken as a whole, to perform their obligations hereunder or under any fees of the other Financing Agreements to which any of them is party or of Agent to enforce the Obligations or realize upon the Collateral. Without limiting the generality of the foregoing, no investigation, litigation or other proceedings shall be pending or threatened against any Obligor as of the closing which could have a Material Adverse Effect in the good faith determination of Agent and expenses payable Lenders;
(f) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral subject to Permitted Liens;
(g) Agent shall have received, in form and substance satisfactory to Agent, (i) a guarantee of payment by each Borrower of the Obligations owed by each of the Obligors and the Additional L/C Debtors, and (ii) a guarantee of payment by all Guarantors of all Obligations;
(h) Agent and Lenders shall be satisfied that as of the date hereof, (i) Obligors taken as a whole, are solvent or will continue to be solvent after giving effect to the Agents transactions contemplated hereby, (ii) Obligors, taken as a whole, do not have unreasonably small capital after the consummation of the transactions contemplated hereby to continue to engage in its business, and (iii) Obligors, taken as a whole, have not incurred liabilities as a result of the Lenders transactions contemplated hereby that are beyond their ability to pay as previously agreed with any Borrowersuch liabilities mature;
(i) for which the Agent has delivered to any Borrower an invoice Excess Availability as determined by Agent, as of the date hereof, shall be not less than five (5) Business Day prior $150,000,000 after giving effect to the date initial Loans made or to be made and Letters of such initial Loans, shall have been paid Credit issued or to be issued in full, and connection with the Agents transactions hereunder;
(j) Agent shall have received and reviewed lien and judgment search results for the followingjurisdiction of organization of each Borrower and the jurisdiction of the chief executive office of each Borrower, which search results shall be in form and substance satisfactory to Agent;
(k) to the extent not previously delivered to Agent, 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 Obligor (other than Parent) and owned by any Obligor, in each case together with stock powers duly executed in blank with respect thereto;
(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 Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(m) Agent shall have received, in form and substance reasonably satisfactory in all respects to Agent, such opinion letters of counsel to Borrowers and Obligors with respect to the Agents:Financing Agreements and such other matters as Agent may reasonably request; and
(an) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed counterparts of this Agreement;
(b) the duly completed Revolving Notes evidencing the Revolving Loan Commitments, the duly executed Term Notes and the duly executed Swing Line Note;
(c) the duly executed Guaranty Agreements and Contribution Agreement;
(d) the duly executed Security Agreements and accompanying Uniform Commercial Code financing statements relating thereto;
(e) the duly executed Trademark Security Agreements and Patent Security Agreement;
(f) the duly executed Pledge Agreements accompanied, delivered to the extent relevant under applicable law, by (i) all stock certificates representing the Pledged Stock, (ii) stock powers for those shares duly executed in blank, (iii) Uniform Commercial Code financing statements relating thereto, and (iv) any other documentation requested by the Collateral Agent in order to assure the perfection of a first priority lien in such Pledged Stock in favor of the Collateral Agent for the benefit of the Lenders;
(g) a duly executed certificate of a senior officer of the Parent certifying that each of the Credit Parties, after giving effect to the transactions contemplated by this Agreement, will be SolventAgent, in form and substance satisfactory to the Agent;
(h) the duly executed Bond Pledge Agreement accompanied, to the extent relevant under applicable law, by (i) the original Ad Valorem Bonds, (ii) bond powers for the Ad Valorem Bonds duly executed in blank, (iii) Uniform Commercial Code financing statements relating thereto, and (iv) any other documentation requested by the Collateral Agent in order to assure the perfection of a first priority lien in such Ad Valorem Bonds in favor of the Collateral Agent for the benefit of the Lenders;
(i) duly executed Mortgages with respect to all Real Property, together with appropriate Uniform Commercial Code financing statements;
(j) title insurance commitments with respect to the Real Property subject to the Mortgages in an amount and in a form reasonably satisfactory to the Collateral Agent;
(k) copies of the as-built surveys of the Real Property subject to the Mortgages, certified to the Collateral Agent, in a form reasonably satisfactory to the Collateral Agent, accompanied by surveyor's certificates in a form reasonably satisfactory to the Collateral Agent;
(l) copies of the Phase I and Phase II environmental reports obtained by the Parent with respect to the Real Property owned by Alamac disclosing only such matters as may be reasonably acceptable to the Agents and the Lenders;
(m) a duly executed closing certificate of the Borrowers in substantially the form of Exhibit G attached hereto and appropriately completed;
(n) certificates of the Secretary or Assistant Secretary of each of the Credit Parties (or, in the case of any Credit Party which is a partnership, a comparable officer of its general partner) attaching and certifying copies of the resolutions of the boards of directors (or, in the case of any partnership, the comparable governing body of such entity) of the Credit Parties, authorizing as applicable (i) the execution, delivery and performance of the Credit Documents, and (ii) the granting of the pledges and security interests granted pursuant to the Security Documents;
(o) certificates of the Secretary or an Assistant Secretary of each of the Credit Parties (or, in the case of any partnership, a comparable officer of its general partner) 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;
(p) certified copies of the certificate or articles of incorporation of each Credit Party (or comparable organizational document of each Credit Party which is a partnership), together with certificates of good standing or existence, as may be available from the Secretary of State (or comparable office or registry for each Credit Party which is a partnership) of the jurisdiction of incorporation or organization of such Credit Party;
(q) examination reports from the Uniform Commercial Code records of each of the jurisdictions listed on Schedule 5.01 hereto, in each case showing no outstanding liens or security interests granted by any Credit Party other than (x) Liens permitted by Section 8.02, and (y) Liens in favor of the Collateral Agent;
(r) copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder and the consummation of the Transaction, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(s) certified copies of the Intercompany Loan Documents;
(t) acknowledgments from National Registered Agents, Inc. as to its appointment as agent for service of process for the various Credit Parties;
(u) certified copies of indentures, credit agreements, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.01(b), in any single case in an amount not less than $1,000,000;
(v) certificates, reports and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans and other compensation and employee benefit plans;
(w) certificates, reports, environmental audits and investigations, and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(x) certificates, reports and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(y) a summary, set forth in format and detail acceptable to the Agents, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies accompanied by the insurance certificates naming the Collateral Agent as loss payee and additional insured as may be required by the terms of the Security Documents;
(z) the favorable opinion of Bass, Berr▇ & ▇ims ▇▇▇, counsel to the Credit Parties, substantially in the form of Exhibit H-1, and (ii) Currothers & Roth, ▇.A. special North Carolina counsel to the Agents and the Lenders, substantially in the form of Exhibit H-2, in each case addressed to the Agents and each of the Lenders, and covering such other matters as either Agent or any Lender may reasonably request;
(aa) a copy of the Alamac Acquisition Agreement, accompanied by the certificate of a senior officer of the Parent as to the consummation of the Alamac Acquisition and the other transactions contemplated by the Alamac Acquisition Agreement and certain other matters, together with copies of the documents required to be delivered pursuant to the Alamac Acquisition Agreement, together with the certificate of a senior officer of the Parent as to the accuracy thereof;
(bb) a duly executed Assignment of Purchase Agreement, acknowledged by the Sellers;
(cc) a letter from Weil Gots▇▇▇▇ & ▇ang▇▇, ▇▇unsel to the Seller, authorizing the Agents and the Lenders to rely upon the opinions delivered by such law firm to the Seller in connection with the Alamac Acquisition;
(dd) a copy of the Senior Subordinated Note Indenture, accompanied by a certificate of a senior officer of the Parent as to the consummation of the offering of the Senior Subordinated Notes and the receipt of gross proceeds thereof in an amount of not less than $125,000,000;
(ee) a duly executed initial Borrowing Base Certificate;
(ff) written direction from the Borrowers to the Agent regarding the disbursement of the proceeds of the Term Loans and the initial Revolving Loans to be made on the Closing Date;
(gg) evidence satisfactory to the Agent of the repayment of all other Indebtedness of the Consolidated Companies (including Alamac Holdings and its Subsidiaries) other than Indebtedness permitted by the terms of this Agreement;
(hh) the Letter of Credit Agreement Amendment; and
(ii) such other documents, opinions, certificates and agreements as the Agents may request.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. At the time Each of the following is a condition precedent to Agent and Lenders making of the initial Loans hereunder and issuance or deemed issuance of each Issuing Bank providing the initial Letters of Credit on the Closing Datehereunder:
(a) Agent shall have received all financial information, all obligations of Borrowers hereunder incurred projections, budgets, business plans, cash flows and such other information as Agent and Syndication Agent shall have requested prior to the initial date hereof, including (i) projected quarterly consolidated balance sheets, income statements, statements of cash flows and availability of Obligors for the period through the fiscal year ending on or about January 31, 2011, (ii) projected annual consolidated balance sheets, income statements, statements of cash flows and availability of Obligors through the fiscal year ending on or about January 31, 2012, in each case as to the projections described in clauses (i) and (ii), with the results and assumptions set forth in all of such projections in form and substance satisfactory to Agent and Syndication Agent, and an opening pro forma balance sheet for Obligors in form and substance satisfactory to Agent and Syndication Agent, and (iii) any updates or modifications to the projected financial statements of Obligors received by Agent prior to the date hereof, in each case in form and substance satisfactory to Agent and Syndication Agent;
(b) Agent shall have completed a field review of the Records and such other information with respect to the Collateral as Agent or Syndication Agent may require to determine the amount of Loans available to Borrowers (including, without limitation, any Borrower's obligations current agings of receivables, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date hereof and test counts of the Inventory in a manner satisfactory to reimburse Agent and Syndication Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Agent to accurately identify and verify the fees Collateral), the results of which in each case shall be satisfactory to Agent and expenses Syndication Agent;
(c) Agent shall have received, at the expense of Borrowers, a written report or appraisal as to the Inventory of Obligors in form, scope and methodology reasonably acceptable to Agent and Syndication Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely;
(d) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Agent, and Lenders shall have received all information and copies of all documents, including records of requisite corporate, and other action and proceedings which Agent may have reasonably requested in connection therewith, such documents where requested by Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the Agents certificate of incorporation, formation or other organization document of any of Borrowers certified by the Secretary of State (or equivalent Governmental Authority);
(e) no material adverse change shall have occurred in the assets, businesses or prospects of Obligors, taken as a whole, since the date of the commencement of Agent’s latest field examination and no change or event shall have occurred which would impair the ability of Obligors, taken as a whole, to perform their obligations hereunder or under any fees of the other Financing Agreements to which any of them is party or of Agent to enforce the Obligations or realize upon the Collateral. Without limiting the generality of the foregoing, no investigation, litigation or other proceedings shall be pending or threatened against any Obligor as of the closing which could have a Material Adverse Effect in the good faith determination of Agent and expenses payable Lenders;
(f) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral subject to Permitted Liens;
(g) Agent shall have received, in form and substance satisfactory to Agent, (i) a guarantee of payment by each Borrower of the Obligations owed by each of the Obligors and the Additional L/C Debtors, and (ii) a guarantee of payment by all Guarantors of all Obligations;
(h) Agent and Lenders shall be satisfied that as of the date hereof, (i) Obligors taken as a whole, are solvent or will continue to be solvent after giving effect to the Agents transactions contemplated hereby, (ii) Obligors, taken as a whole, do not have unreasonably small capital after the consummation of the transactions contemplated hereby to continue to engage in its business, and (iii) Obligors, taken as a whole, have not incurred liabilities as a result of the Lenders transactions contemplated hereby that are beyond their ability to pay as previously agreed with any Borrowersuch liabilities mature;
(i) for which the Agent has delivered to any Borrower an invoice Excess Availability as determined by Agent, as of the date hereof, shall be not less than five (5) Business Day prior $150,000,000 after giving effect to the date initial Loans made or to be made and Letters of such initial Loans, shall have been paid Credit issued or to be issued in full, and connection with the Agents transactions hereunder;
(j) Agent shall have received and reviewed lien and judgment search results for the followingjurisdiction of organization of each Borrower and the jurisdiction of the chief executive office of each Borrower, which search results shall be in form and substance satisfactory to Agent;
(k) to the extent not previously delivered to Agent, 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 Obligor (other than Parent) and owned by any Obligor, in each case together with stock powers duly executed in blank with respect thereto;
(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 Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
(m) Agent shall have received, in form and substance reasonably satisfactory in all respects to Agent, such opinion letters of counsel to Borrowers and Obligors with respect to the Agents:Financing Agreements and such other matters as Agent may reasonably request; and
(an) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed counterparts of this Agreement;
(b) the duly completed Revolving Notes evidencing the Revolving Loan Commitments, the duly executed Term Notes and the duly executed Swing Line Note;
(c) the duly executed Guaranty Agreements and Contribution Agreement;
(d) the duly executed Security Agreements and accompanying Uniform Commercial Code financing statements relating thereto;
(e) the duly executed Trademark Security Agreements and Patent Security Agreement;
(f) the duly executed Pledge Agreements accompanied, delivered to the extent relevant under applicable law, by (i) all stock certificates representing the Pledged Stock, (ii) stock powers for those shares duly executed in blank, (iii) Uniform Commercial Code financing statements relating thereto, and (iv) any other documentation requested by the Collateral Agent in order to assure the perfection of a first priority lien in such Pledged Stock in favor of the Collateral Agent for the benefit of the Lenders;
(g) a duly executed certificate of a senior officer of the Parent certifying that each of the Credit Parties, after giving effect to the transactions contemplated by this Agreement, will be SolventAgent, in form and substance satisfactory to the Agent;
(h) the duly executed Bond Pledge Agreement accompanied, to the extent relevant under applicable law, by (i) the original Ad Valorem Bonds, (ii) bond powers for the Ad Valorem Bonds duly executed in blank, (iii) Uniform Commercial Code financing statements relating thereto, and (iv) any other documentation requested by the Collateral Agent in order to assure the perfection of a first priority lien in such Ad Valorem Bonds in favor of the Collateral Agent for the benefit of the Lenders;
(i) duly executed Mortgages with respect to all Real Property, together with appropriate Uniform Commercial Code financing statements;
(j) title insurance commitments with respect to the Real Property subject to the Mortgages in an amount and in a form reasonably satisfactory to the Collateral Agent;
(k) copies of the as-built surveys of the Real Property subject to the Mortgages, certified to the Collateral Agent, in a form reasonably satisfactory to the Collateral Agent, accompanied by surveyor's certificates in a form reasonably satisfactory to the Collateral Agent;
(l) copies of the Phase I and Phase II environmental reports obtained by the Parent with respect to the Real Property owned by Alamac disclosing only such matters as may be reasonably acceptable to the Agents and the Lenders;
(m) a duly executed closing certificate of the Borrowers in substantially the form of Exhibit G attached hereto and appropriately completed;
(n) certificates of the Secretary or Assistant Secretary of each of the Credit Parties (or, in the case of any Credit Party which is a partnership, a comparable officer of its general partner) attaching and certifying copies of the resolutions of the boards of directors (or, in the case of any partnership, the comparable governing body of such entity) of the Credit Parties, authorizing as applicable (i) the execution, delivery and performance of the Credit Documents, and (ii) the granting of the pledges and security interests granted pursuant to the Security Documents;
(o) certificates of the Secretary or an Assistant Secretary of each of the Credit Parties (or, in the case of any partnership, a comparable officer of its general partner) 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;
(p) certified copies of the certificate or articles of incorporation of each Credit Party (or comparable organizational document of each Credit Party which is a partnership), together with certificates of good standing or existence, as may be available from the Secretary of State (or comparable office or registry for each Credit Party which is a partnership) of the jurisdiction of incorporation or organization of such Credit Party;
(q) examination reports from the Uniform Commercial Code records of each of the jurisdictions listed on Schedule 5.01 hereto, in each case showing no outstanding liens or security interests granted by any Credit Party other than (x) Liens permitted by Section 8.02, and (y) Liens in favor of the Collateral Agent;
(r) copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder and the consummation of the Transaction, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(s) certified copies of the Intercompany Loan Documents;
(t) acknowledgments from National Registered Agents, Inc. as to its appointment as agent for service of process for the various Credit Parties;
(u) certified copies of indentures, credit agreements, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.01(b), in any single case in an amount not less than $1,000,000;
(v) certificates, reports and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans and other compensation and employee benefit plans;
(w) certificates, reports, environmental audits and investigations, and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(x) certificates, reports and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(y) a summary, set forth in format and detail acceptable to the Agents, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies accompanied by the insurance certificates naming the Collateral Agent as loss payee and additional insured as may be required by the terms of the Security Documents;
(z) the favorable opinion of Bass, Berr▇ & ▇ims ▇▇▇, counsel to the Credit Parties, substantially in the form of Exhibit H-1, and (ii) Currothers & Roth, ▇.A. special North Carolina counsel to the Agents and the Lenders, substantially in the form of Exhibit H-2, in each case addressed to the Agents and each of the Lenders, and covering such other matters as either Agent or any Lender may reasonably request;
(aa) a copy of the Alamac Acquisition Agreement, accompanied by the certificate of a senior officer of the Parent as to the consummation of the Alamac Acquisition and the other transactions contemplated by the Alamac Acquisition Agreement and certain other matters, together with copies of the documents required to be delivered pursuant to the Alamac Acquisition Agreement, together with the certificate of a senior officer of the Parent as to the accuracy thereof;
(bb) a duly executed Assignment of Purchase Agreement, acknowledged by the Sellers;
(cc) a letter from Weil Gots▇▇▇▇ & ▇ang▇▇, ▇▇unsel to the Seller, authorizing the Agents and the Lenders to rely upon the opinions delivered by such law firm to the Seller in connection with the Alamac Acquisition;
(dd) a copy of the Senior Subordinated Note Indenture, accompanied by a certificate of a senior officer of the Parent as to the consummation of the offering of the Senior Subordinated Notes and the receipt of gross proceeds thereof in an amount of not less than $125,000,000;
(ee) a duly executed initial Borrowing Base Certificate;
(ff) written direction from the Borrowers to the Agent regarding the disbursement of the proceeds of the Term Loans and the initial Revolving Loans to be made on the Closing Date;
(gg) evidence satisfactory to the Agent of the repayment of all other Indebtedness of the Consolidated Companies (including Alamac Holdings and its Subsidiaries) other than Indebtedness permitted by the terms of this Agreement;
(hh) the Letter of Credit Agreement Amendment; and
(ii) such other documents, opinions, certificates and agreements as the Agents may request.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. At the time Each of the following is a condition precedent to Agent and Lenders making of the initial Loans hereunder and issuance or deemed issuance of providing the initial Letters of Credit on the Closing Date, all obligations of Borrowers hereunder incurred prior to the initial Loans (including, without limitation, any Borrower's obligations to reimburse the fees and expenses of counsel to the Agents and any fees and expenses payable to the Agents and the Lenders as previously agreed with any Borrower) for which the Agent has delivered to any Borrower an invoice not less than five (5) Business Day prior to the date of such initial Loans, shall have been paid in full, and the Agents shall have received the following, in form and substance reasonably satisfactory in all respects to the Agentshereunder:
(a) all requisite corporate action and proceedings in connection with the duly executed counterparts transactions contemplated by this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Agent, and Agent shall have received all information and copies of this Agreementall documents, including records of requisite corporate action and proceedings which Agent may have requested in connection therewith, such documents where requested by Agent or its counsel to be certified by appropriate corporate officers or Governmental Authorities;
(b) all financial information, projections, budgets, business plans, cash flows and such other information as Agent shall request from time to time, including (i) projected quarterly balance sheets, income statements, statements of cash flows and Excess Availability of Borrowers and Guarantors for the duly completed Revolving Notes evidencing period commencing July 1, 2007 through the Revolving Loan Commitmentsend of the 2008 fiscal year of Borrowers, (ii) projected annual balance sheets, income statements, statements of cash flows and Excess Availability of Borrowers and Guarantors for the duly executed Term Notes period commencing July 1, 2007 through the end of the 2010 fiscal year of Borrowers (and in addition thereto, further projected income statements of Borrowers and Guarantors commencing July 1, 2007 through the duly executed Swing Line Noteend of the 2011 and 2012 fiscal years of Borrowers), in each case as to the projections described in clauses (i) and (ii), with the results and assumptions set forth in all of such projections in form and substance satisfactory to Agent, and an opening pro forma balance sheet for Borrowers and Guarantors in form and substance satisfactory to Agent, (iii) any updates or modifications to the projected financial statements of Borrowers and Guarantors described hereinabove heretofore received by Agent, in each case in form and substance satisfactory to Agent, and (iv) an aging of Accounts as of August 31, 2007, perpetual Inventory records as of August 31, 2007 and/or rollforwards of Accounts and Inventory through the Closing Date, together with supporting documentation, each in form and substance satisfactory to Agent;
(c) no material adverse change shall have occurred in the duly executed Guaranty assets, business or financial condition of Borrowers and their Subsidiaries, taken as a whole, since the date of Agent's latest field examination and no change or event shall have occurred which would impair the ability of Borrowers or any Obligor to perform their obligations hereunder or under any of the other Financing Agreements and Contribution Agreementto which it is a party or of Agent to enforce the Obligations or realize upon the Collateral;
(d) Agent shall have completed its business and legal due diligence, with results satisfactory to Agent, including (i) receipt and review of third party appraisals, in form and containing assumptions and appraisal methods satisfactory to Agent by an appraiser acceptable to Agent on which Agent and Lenders are permitted to rely, (ii) field examinations of the duly executed Security Agreements business and accompanying Uniform Commercial Code financing statements Collateral of Borrowers in accordance with Agent's customary procedures and practices and as otherwise required by the nature and circumstances of the businesses of Borrowers, and (iii) to the extent not delivered in connection with the Existing Loan Agreement, environmental assessments of the Real Property of Borrowers conducted by an independent environmental engineering firm acceptable to Agent and in form, scope and methodology acceptable to Agent, and Agent shall be satisfied with the corporate and capital structure and management of Borrowers and with all legal, tax, accounting and other matters relating theretoto Borrowers;
(e) the duly executed Trademark Security Agreements and Patent Security Agreement;
(f) the duly executed Pledge Agreements accompanied, to the extent relevant under applicable law, by (i) all stock certificates representing the Pledged Stock, (ii) stock powers for those shares duly executed in blank, (iii) Uniform Commercial Code financing statements relating thereto, and (iv) any other documentation requested by the Collateral Agent in order to assure the perfection of a first priority lien in such Pledged Stock in favor of the Collateral Agent for the benefit of the Lenders;
(g) a duly executed certificate of a senior officer of the Parent certifying that each of the Credit Parties, after giving effect to the transactions contemplated by this Agreement, will be Solventshall have received, in form and substance satisfactory to Agent, all consents, waivers, acknowledgments and other agreements from third Persons which 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 Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) the Excess Availability as determined by Agent, as of the date hereof, shall be not less than $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 contemplated hereunder;
(g) Agent shall have received, in form and substance satisfactory to Agent, Deposit Account Control Agreements by and among Agent, each Borrower and each bank where such Borrower has a deposit account, in each case, duly authorized, executed and delivered by such bank and such Borrower (or Agent shall be the bank's customer with respect to such deposit account as Agent may specify);
(h) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest and lien in all of the duly executed Bond Pledge Agreement accompanied, to the extent relevant under applicable law, by Collateral;
(i) Agent shall have received and reviewed UCC search results for all jurisdictions in the original Ad Valorem BondsUnited States and Canada which assets of each Borrower and Guarantor are located, which search results shall be in form and substance satisfactory to Agent;
(iij) bond powers for Agent shall have received, in form and substance satisfactory to Agent, an amendment to the Ad Valorem Bonds Factor Intercreditor Agreement duly executed and delivered by the parties thereto;
(k) Agent shall have received, in blankform and substance satisfactory to Agent, (iii) a Uniform Commercial Code financing statements relating theretoon 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 Borrowers and their domestic Subsidiaries, and (iv) any other documentation requested by the Collateral Agent in order to assure the perfection of a first priority lien in such Ad Valorem Bonds in favor shall have received confirmation of the Collateral Agent for the benefit filing of the Lenders;
(i) duly executed Mortgages with respect to all Real Property, together with appropriate Uniform Commercial Code such financing statements;
(j) title insurance commitments with respect to the Real Property subject to the Mortgages in an amount and in a form reasonably satisfactory to the Collateral Agent;
(k) copies of the as-built surveys of the Real Property subject to the Mortgages, certified to the Collateral Agent, in a form reasonably satisfactory to the Collateral Agent, accompanied by surveyor's certificates in a form reasonably satisfactory to the Collateral Agent;
(l) copies of Agent shall have received the Phase I Solvency Certificate and Phase II environmental reports obtained by the Parent with respect to the Real Property owned by Alamac disclosing only such matters all financial statements attached as may be reasonably acceptable to the Agents and the Lendersexhibits thereto;
(m) Agent shall have received, at least five (5) Business Days prior to the Closing Date, a duly executed closing certificate reasonably satisfactory to the Agent, for benefit of itself and the Lenders, provided by Borrowers that sets forth information required by the USA PATRIOT Act including, without limitation, the identity of the Borrowers Obligors, the name and address of the Obligors and other information that will allow the Administrative Agent or any Lender, as applicable, to identify the Obligors in substantially accordance with the form of Exhibit G attached hereto and appropriately completedUSA PATRIOT Act;
(n) 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 Agent, and certificates of the Secretary or Assistant Secretary of each of the Credit Parties (or, in the case of any Credit Party which is a partnership, a comparable officer of its general partner) attaching and certifying copies of the resolutions of the boards of directors (or, in the case of any partnership, the comparable governing body of such entity) of the Credit Parties, authorizing insurance policies and/or endorsements naming Agent as applicable (i) the execution, delivery and performance of the Credit Documents, and (ii) the granting of the pledges and security interests granted pursuant to the Security Documentsloss payee;
(o) certificates of the Secretary or an Assistant Secretary of each of the Credit Parties (orAgent shall have received, in form and substance satisfactory to Agent, such opinion letters of counsel to Borrowers and Guarantors with respect to the case of any partnership, a comparable officer of its general partner) certifying (i) the name, title Financing Agreements and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;other matters as Agent may request; and
(p) certified copies of the certificate or articles of incorporation of each Credit Party (or comparable organizational document of each Credit Party which is a partnership), together with certificates of good standing or existence, as may be available from the Secretary of State (or comparable office or registry for each Credit Party which is a partnership) of the jurisdiction of incorporation or organization of such Credit Party;
(q) examination reports from the Uniform Commercial Code records of each of the jurisdictions listed on Schedule 5.01 hereto, in each case showing no outstanding liens or security interests granted by any Credit Party other than (x) Liens permitted by Section 8.02, Financing Agreements and (y) Liens in favor of the Collateral Agent;
(r) copies of all instruments and documents and instrumentshereunder, including all consentsamendments to the Mortgages, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be shall have been duly executed and delivered hereunder and the consummation of the Transaction, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(s) certified copies of the Intercompany Loan Documents;
(t) acknowledgments from National Registered Agents, Inc. as to its appointment as agent for service of process for the various Credit Parties;
(u) certified copies of indentures, credit agreements, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.01(b)Agent, in any single case in an amount not less than $1,000,000;
(v) certificates, reports form and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans and other compensation and employee benefit plans;
(w) certificates, reports, environmental audits and investigations, and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(x) certificates, reports and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(y) a summary, set forth in format and detail acceptable to the Agents, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies accompanied by the insurance certificates naming the Collateral Agent as loss payee and additional insured as may be required by the terms of the Security Documents;
(z) the favorable opinion of Bass, Berr▇ & ▇ims ▇▇▇, counsel to the Credit Parties, substantially in the form of Exhibit H-1, and (ii) Currothers & Roth, ▇.A. special North Carolina counsel to the Agents and the Lenders, substantially in the form of Exhibit H-2, in each case addressed to the Agents and each of the Lenders, and covering such other matters as either Agent or any Lender may reasonably request;
(aa) a copy of the Alamac Acquisition Agreement, accompanied by the certificate of a senior officer of the Parent as to the consummation of the Alamac Acquisition and the other transactions contemplated by the Alamac Acquisition Agreement and certain other matters, together with copies of the documents required to be delivered pursuant to the Alamac Acquisition Agreement, together with the certificate of a senior officer of the Parent as to the accuracy thereof;
(bb) a duly executed Assignment of Purchase Agreement, acknowledged by the Sellers;
(cc) a letter from Weil Gots▇▇▇▇ & ▇ang▇▇, ▇▇unsel to the Seller, authorizing the Agents and the Lenders to rely upon the opinions delivered by such law firm to the Seller in connection with the Alamac Acquisition;
(dd) a copy of the Senior Subordinated Note Indenture, accompanied by a certificate of a senior officer of the Parent as to the consummation of the offering of the Senior Subordinated Notes and the receipt of gross proceeds thereof in an amount of not less than $125,000,000;
(ee) a duly executed initial Borrowing Base Certificate;
(ff) written direction from the Borrowers to the Agent regarding the disbursement of the proceeds of the Term Loans and the initial Revolving Loans to be made on the Closing Date;
(gg) evidence substance satisfactory to the Agent of the repayment of all other Indebtedness of the Consolidated Companies (including Alamac Holdings and its Subsidiaries) other than Indebtedness permitted by the terms of this Agreement;
(hh) the Letter of Credit Agreement Amendment; and
(ii) such other documents, opinions, certificates and agreements as the Agents may requestAgent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. At the time Each of the following is a condition precedent to Agent and Lenders making of the initial Loans hereunder and issuance or deemed issuance of providing the initial Letters of Credit on the Closing Date, all obligations of Borrowers hereunder incurred prior to the initial Loans (including, without limitation, any Borrower's obligations to reimburse the fees and expenses of counsel to the Agents and any fees and expenses payable to the Agents and the Lenders as previously agreed with any Borrower) for which the Agent has delivered to any Borrower an invoice not less than five (5) Business Day prior to the date of such initial Loans, shall have been paid in full, and the Agents shall have received the following, in form and substance reasonably satisfactory in all respects to the Agentshereunder:
(a) all requisite corporate action and proceedings in connection with the duly executed counterparts transactions contemplated by this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Agent, and Agent shall have received all information and copies of this Agreementall documents, including records of requisite corporate action and proceedings which Agent may have requested in connection therewith, such documents where requested by Agent or its counsel to be certified by appropriate corporate officers or Governmental Authorities;
(b) all financial information, projections, budgets, business plans, cash flows and such other information as Agent shall request from time to time, including (i) projected quarterly balance sheets, income statements, statements of cash flows and Excess Availability of Borrowers and Guarantors for the duly completed Revolving Notes evidencing period commencing July 1, 2007 through the Revolving Loan Commitmentsend of the 2008 fiscal year of Borrowers, (ii) projected annual balance sheets, income statements, statements of cash flows and Excess Availability of Borrowers and Guarantors for the duly executed Term Notes period commencing July 1, 2007 through the end of the 2010 fiscal year of Borrowers (and in addition thereto, further projected income statements of Borrowers and Guarantors commencing July 1, 2007 through the duly executed Swing Line Noteend of the 2011 and 2012 fiscal years of Borrowers), in each case as to the projections described in clauses (i) and (ii), with the results and assumptions set forth in all of such projections in form and substance satisfactory to Agent, and an opening pro forma balance sheet for Borrowers and Guarantors in form and substance satisfactory to Agent, (iii) any updates or modifications to the projected financial statements of Borrowers and Guarantors described hereinabove heretofore received by Agent, in each case in form and substance satisfactory to Agent, and (iv) an aging of Accounts as of August 31, 2007, perpetual Inventory records as of August 31, 2007 and/or rollforwards of Accounts and Inventory through the Closing Date, together with supporting documentation, each in form and substance satisfactory to Agent;
(c) no material adverse change shall have occurred in the duly executed Guaranty assets, business or financial condition of Borrowers and their Subsidiaries, taken as a whole, since the date of Agent’s latest field examination and no change or event shall have occurred which would impair the ability of Borrowers or any Obligor to perform their obligations hereunder or under any of the other Financing Agreements and Contribution Agreementto which it is a party or of Agent to enforce the Obligations or realize upon the Collateral;
(d) Agent shall have completed its business and legal due diligence, with results satisfactory to Agent, including (i) receipt and review of third party appraisals, in form and containing assumptions and appraisal methods satisfactory to Agent by an appraiser acceptable to Agent on which Agent and Lenders are permitted to rely, (ii) field examinations of the duly executed Security Agreements business and accompanying Uniform Commercial Code financing statements Collateral of Borrowers in accordance with Agent’s customary procedures and practices and as otherwise required by the nature and circumstances of the businesses of Borrowers, and (iii) to the extent not delivered in connection with the Existing Loan Agreement, environmental assessments of the Real Property of Borrowers conducted by an independent environmental engineering firm acceptable to Agent and in form, scope and methodology acceptable to Agent, and Agent shall be satisfied with the corporate and capital structure and management of Borrowers and with all legal, tax, accounting and other matters relating theretoto Borrowers;
(e) the duly executed Trademark Security Agreements and Patent Security Agreement;
(f) the duly executed Pledge Agreements accompanied, to the extent relevant under applicable law, by (i) all stock certificates representing the Pledged Stock, (ii) stock powers for those shares duly executed in blank, (iii) Uniform Commercial Code financing statements relating thereto, and (iv) any other documentation requested by the Collateral Agent in order to assure the perfection of a first priority lien in such Pledged Stock in favor of the Collateral Agent for the benefit of the Lenders;
(g) a duly executed certificate of a senior officer of the Parent certifying that each of the Credit Parties, after giving effect to the transactions contemplated by this Agreement, will be Solventshall have received, in form and substance satisfactory to Agent, all consents, waivers, acknowledgments and other agreements from third Persons which 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 Collateral Access Agreements by owners and lessors of leased premises of Borrower and by warehouses at which Collateral is located;
(f) the Excess Availability as determined by Agent, as of the date hereof, shall be not less than $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 contemplated hereunder;
(g) Agent shall have received, in form and substance satisfactory to Agent, Deposit Account Control Agreements by and among Agent, each Borrower and each bank where such Borrower has a deposit account, in each case, duly authorized, executed and delivered by such bank and such Borrower (or Agent shall be the bank’s customer with respect to such deposit account as Agent may specify);
(h) Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest and lien in all of the duly executed Bond Pledge Agreement accompanied, to the extent relevant under applicable law, by Collateral;
(i) Agent shall have received and reviewed UCC search results for all jurisdictions in the original Ad Valorem BondsUnited States and Canada which assets of each Borrower and Guarantor are located, which search results shall be in form and substance satisfactory to Agent;
(iij) bond powers for Agent shall have received, in form and substance satisfactory to Agent, an amendment to the Ad Valorem Bonds Factor Intercreditor Agreement duly executed and delivered by the parties thereto;
(k) Agent shall have received, in blankform and substance satisfactory to Agent, (iii) a Uniform Commercial Code financing statements relating theretoon 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 Borrowers and their domestic Subsidiaries, and (iv) any other documentation requested by the Collateral Agent in order to assure the perfection of a first priority lien in such Ad Valorem Bonds in favor shall have received confirmation of the Collateral Agent for the benefit filing of the Lenders;
(i) duly executed Mortgages with respect to all Real Property, together with appropriate Uniform Commercial Code such financing statements;
(j) title insurance commitments with respect to the Real Property subject to the Mortgages in an amount and in a form reasonably satisfactory to the Collateral Agent;
(k) copies of the as-built surveys of the Real Property subject to the Mortgages, certified to the Collateral Agent, in a form reasonably satisfactory to the Collateral Agent, accompanied by surveyor's certificates in a form reasonably satisfactory to the Collateral Agent;
(l) copies of Agent shall have received the Phase I Solvency Certificate and Phase II environmental reports obtained by the Parent with respect to the Real Property owned by Alamac disclosing only such matters all financial statements attached as may be reasonably acceptable to the Agents and the Lendersexhibits thereto;
(m) Agent shall have received, at least five (5) Business Days prior to the Closing Date, a duly executed closing certificate reasonably satisfactory to the Agent, for benefit of itself and the Lenders, provided by Borrowers that sets forth information required by the USA PATRIOT Act including, without limitation, the identity of the Borrowers Obligors, the name and address of the Obligors and other information that will allow the Administrative Agent or any Lender, as applicable, to identify the Obligors in substantially accordance with the form of Exhibit G attached hereto and appropriately completedUSA PATRIOT Act;
(n) 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 Agent, and certificates of the Secretary or Assistant Secretary of each of the Credit Parties (or, in the case of any Credit Party which is a partnership, a comparable officer of its general partner) attaching and certifying copies of the resolutions of the boards of directors (or, in the case of any partnership, the comparable governing body of such entity) of the Credit Parties, authorizing insurance policies and/or endorsements naming Agent as applicable (i) the execution, delivery and performance of the Credit Documents, and (ii) the granting of the pledges and security interests granted pursuant to the Security Documentsloss payee;
(o) certificates of the Secretary or an Assistant Secretary of each of the Credit Parties (orAgent shall have received, in form and substance satisfactory to Agent, such opinion letters of counsel to Borrowers and Guarantors with respect to the case of any partnership, a comparable officer of its general partner) certifying (i) the name, title Financing Agreements and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;other matters as Agent may request; and
(p) certified copies of the certificate or articles of incorporation of each Credit Party (or comparable organizational document of each Credit Party which is a partnership), together with certificates of good standing or existence, as may be available from the Secretary of State (or comparable office or registry for each Credit Party which is a partnership) of the jurisdiction of incorporation or organization of such Credit Party;
(q) examination reports from the Uniform Commercial Code records of each of the jurisdictions listed on Schedule 5.01 hereto, in each case showing no outstanding liens or security interests granted by any Credit Party other than (x) Liens permitted by Section 8.02, Financing Agreements and (y) Liens in favor of the Collateral Agent;
(r) copies of all instruments and documents and instrumentshereunder, including all consentsamendments to the Mortgages, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be shall have been duly executed and delivered hereunder and the consummation of the Transaction, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(s) certified copies of the Intercompany Loan Documents;
(t) acknowledgments from National Registered Agents, Inc. as to its appointment as agent for service of process for the various Credit Parties;
(u) certified copies of indentures, credit agreements, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.01(b)Agent, in any single case in an amount not less than $1,000,000;
(v) certificates, reports form and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans and other compensation and employee benefit plans;
(w) certificates, reports, environmental audits and investigations, and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(x) certificates, reports and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(y) a summary, set forth in format and detail acceptable to the Agents, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies accompanied by the insurance certificates naming the Collateral Agent as loss payee and additional insured as may be required by the terms of the Security Documents;
(z) the favorable opinion of Bass, Berr▇ & ▇ims ▇▇▇, counsel to the Credit Parties, substantially in the form of Exhibit H-1, and (ii) Currothers & Roth, ▇.A. special North Carolina counsel to the Agents and the Lenders, substantially in the form of Exhibit H-2, in each case addressed to the Agents and each of the Lenders, and covering such other matters as either Agent or any Lender may reasonably request;
(aa) a copy of the Alamac Acquisition Agreement, accompanied by the certificate of a senior officer of the Parent as to the consummation of the Alamac Acquisition and the other transactions contemplated by the Alamac Acquisition Agreement and certain other matters, together with copies of the documents required to be delivered pursuant to the Alamac Acquisition Agreement, together with the certificate of a senior officer of the Parent as to the accuracy thereof;
(bb) a duly executed Assignment of Purchase Agreement, acknowledged by the Sellers;
(cc) a letter from Weil Gots▇▇▇▇ & ▇ang▇▇, ▇▇unsel to the Seller, authorizing the Agents and the Lenders to rely upon the opinions delivered by such law firm to the Seller in connection with the Alamac Acquisition;
(dd) a copy of the Senior Subordinated Note Indenture, accompanied by a certificate of a senior officer of the Parent as to the consummation of the offering of the Senior Subordinated Notes and the receipt of gross proceeds thereof in an amount of not less than $125,000,000;
(ee) a duly executed initial Borrowing Base Certificate;
(ff) written direction from the Borrowers to the Agent regarding the disbursement of the proceeds of the Term Loans and the initial Revolving Loans to be made on the Closing Date;
(gg) evidence substance satisfactory to the Agent of the repayment of all other Indebtedness of the Consolidated Companies (including Alamac Holdings and its Subsidiaries) other than Indebtedness permitted by the terms of this Agreement;
(hh) the Letter of Credit Agreement Amendment; and
(ii) such other documents, opinions, certificates and agreements as the Agents may requestAgent.
Appears in 1 contract
Conditions Precedent to Initial Loans and Letters of Credit. At the time Each of the following is a condition precedent to Agent and Lenders making of the initial Loans hereunder and issuance or deemed issuance of providing the initial Letters of Credit on the Closing Date, all obligations of Borrowers hereunder incurred prior to the initial Loans (including, without limitation, any Borrower's obligations to reimburse the fees and expenses of counsel to the Agents and any fees and expenses payable to the Agents and the Lenders as previously agreed with any Borrower) for which the Agent has delivered to any Borrower an invoice not less than five (5) Business Day prior to the date of such initial Loans, shall have been paid in full, and the Agents shall have received the following, in form and substance reasonably satisfactory in all respects to the Agentshereunder:
(a) all requisite corporate action and proceedings in connection with the duly executed counterparts transactions contemplated by this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Agent, and Agent shall have received all information and copies of this Agreementall documents, including records of requisite corporate action and proceedings which Agent may have requested in connection therewith, such documents where requested by Agent or its counsel to be certified by appropriate corporate officers or Governmental Authorities;
(b) all financial information, projections, budgets, business plans, cash flows and such other information as Agent shall request from time to time, in each case in form and substance acceptable to Agent, including (i) projected quarterly balance sheets, income statements and Excess Availability of Borrowers and Guarantors for the duly completed Revolving Notes evidencing period through the Revolving Loan Commitmentslast day of Borrowers’ 2012 fiscal year, (ii) projected annual balance sheets, income statements and Excess Availability of Borrowers and Guarantors for the duly executed Term Notes period through the last day of Borrowers’ 2016 fiscal year, and (iii) any updates or modifications to the duly executed Swing Line Noteprojected financial statements of Borrowers and Guarantors described hereinabove heretofore received by Agent, together with supporting documentation;
(c) no material adverse change shall have occurred in the duly executed Guaranty assets, business or financial condition of Borrowers and their Subsidiaries, taken as a whole, since the date of Agent’s latest field examination and no change or event shall have occurred which would impair the ability of Borrowers or any Obligor to perform their obligations hereunder or under any of the other Financing Agreements and Contribution Agreementto which it is a party or of Agent to enforce the Obligations or realize upon the Collateral;
(d) Agent shall have completed its business and legal due diligence, with results satisfactory to Agent, including (i) receipt and review of third party appraisals, in form and containing assumptions and appraisal methods satisfactory to Agent by an appraiser acceptable to Agent on which Agent and Lenders are permitted to rely, (ii) field examinations of the duly executed Security Agreements business and accompanying Uniform Commercial Code financing statements relating theretoCollateral of Borrowers in accordance with Agent’s customary procedures and practices and as otherwise required by the nature and circumstances of the businesses of Borrowers, and (iii) environmental assessments of the Real Property of Borrowers conducted by an independent environmental engineering firm acceptable to Agent and in form, scope and methodology acceptable to Agent;
(e) the duly executed Trademark Security Agreements and Patent Security Agreement;
(f) the duly executed Pledge Agreements accompanied, to the extent relevant under applicable law, by (i) all stock certificates representing the Pledged Stock, (ii) stock powers for those shares duly executed in blank, (iii) Uniform Commercial Code financing statements relating thereto, and (iv) any other documentation requested by the Collateral Agent in order to assure the perfection of a first priority lien in such Pledged Stock in favor of the Collateral Agent for the benefit of the Lenders;
(g) a duly executed certificate of a senior officer of the Parent certifying that each of the Credit Parties, after giving effect to the transactions contemplated by this Agreement, will be Solventshall have received, in form and substance satisfactory to Agent, all consents, waivers, acknowledgments and other agreements from third Persons which Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and Liens upon the AgentCollateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including Collateral Access Agreements by owners and lessors of leased premises of each Borrower and by warehouses at which Collateral is located;
(hf) the duly executed Bond Pledge Agreement accompaniedExcess Availability as determined by Agent, as of the date hereof, shall be not less than $10,000,000 after giving effect to the extent relevant under applicable law, by (i) the original Ad Valorem Bonds, (ii) bond powers for the Ad Valorem Bonds duly executed in blank, (iii) Uniform Commercial Code financing statements relating thereto, initial Loans made or to be made and (iv) any other documentation requested by the Collateral Agent in order Letters of Credit issued or to assure the perfection of a first priority lien in such Ad Valorem Bonds in favor of the Collateral Agent for the benefit of the Lenders;
(i) duly executed Mortgages with respect to all Real Property, together with appropriate Uniform Commercial Code financing statements;
(j) title insurance commitments with respect to the Real Property subject to the Mortgages in an amount and in a form reasonably satisfactory to the Collateral Agent;
(k) copies of the as-built surveys of the Real Property subject to the Mortgages, certified to the Collateral Agent, in a form reasonably satisfactory to the Collateral Agent, accompanied by surveyor's certificates in a form reasonably satisfactory to the Collateral Agent;
(l) copies of the Phase I and Phase II environmental reports obtained by the Parent with respect to the Real Property owned by Alamac disclosing only such matters as may be reasonably acceptable to the Agents and the Lenders;
(m) a duly executed closing certificate of the Borrowers in substantially the form of Exhibit G attached hereto and appropriately completed;
(n) certificates of the Secretary or Assistant Secretary of each of the Credit Parties (or, in the case of any Credit Party which is a partnership, a comparable officer of its general partner) attaching and certifying copies of the resolutions of the boards of directors (or, in the case of any partnership, the comparable governing body of such entity) of the Credit Parties, authorizing as applicable (i) the execution, delivery and performance of the Credit Documents, and (ii) the granting of the pledges and security interests granted pursuant to the Security Documents;
(o) certificates of the Secretary or an Assistant Secretary of each of the Credit Parties (or, in the case of any partnership, a comparable officer of its general partner) 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;
(p) certified copies of the certificate or articles of incorporation of each Credit Party (or comparable organizational document of each Credit Party which is a partnership), together with certificates of good standing or existence, as may be available from the Secretary of State (or comparable office or registry for each Credit Party which is a partnership) of the jurisdiction of incorporation or organization of such Credit Party;
(q) examination reports from the Uniform Commercial Code records of each of the jurisdictions listed on Schedule 5.01 hereto, in each case showing no outstanding liens or security interests granted by any Credit Party other than (x) Liens permitted by Section 8.02, and (y) Liens in favor of the Collateral Agent;
(r) copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, issued in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder and the consummation of the Transaction, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(s) certified copies of the Intercompany Loan Documents;
(t) acknowledgments from National Registered Agents, Inc. as to its appointment as agent for service of process for the various Credit Parties;
(u) certified copies of indentures, credit agreements, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.01(b), in any single case in an amount not less than $1,000,000;
(v) certificates, reports and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans and other compensation and employee benefit plans;
(w) certificates, reports, environmental audits and investigations, and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(x) certificates, reports and other information as the Agents may request from any Consolidated Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(y) a summary, set forth in format and detail acceptable to the Agents, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies accompanied by the insurance certificates naming the Collateral Agent as loss payee and additional insured as may be required by the terms of the Security Documents;
(z) the favorable opinion of Bass, Berr▇ & ▇ims ▇▇▇, counsel to the Credit Parties, substantially in the form of Exhibit H-1, and (ii) Currothers & Roth, ▇.A. special North Carolina counsel to the Agents and the Lenders, substantially in the form of Exhibit H-2, in each case addressed to the Agents and each of the Lenders, and covering such other matters as either Agent or any Lender may reasonably request;
(aa) a copy of the Alamac Acquisition Agreement, accompanied by the certificate of a senior officer of the Parent as to the consummation of the Alamac Acquisition and the other initial transactions contemplated by the Alamac Acquisition Agreement and certain other matters, together with copies of the documents required to be delivered pursuant to the Alamac Acquisition Agreement, together with the certificate of a senior officer of the Parent as to the accuracy thereofhereunder;
(bb) a duly executed Assignment of Purchase Agreement, acknowledged by the Sellers;
(cc) a letter from Weil Gots▇▇▇▇ & ▇ang▇▇, ▇▇unsel to the Seller, authorizing the Agents and the Lenders to rely upon the opinions delivered by such law firm to the Seller in connection with the Alamac Acquisition;
(dd) a copy of the Senior Subordinated Note Indenture, accompanied by a certificate of a senior officer of the Parent as to the consummation of the offering of the Senior Subordinated Notes and the receipt of gross proceeds thereof in an amount of not less than $125,000,000;
(ee) a duly executed initial Borrowing Base Certificate;
(ff) written direction from the Borrowers to the Agent regarding the disbursement of the proceeds of the Term Loans and the initial Revolving Loans to be made on the Closing Date;
(gg) evidence satisfactory to the Agent of the repayment of all other Indebtedness of the Consolidated Companies (including Alamac Holdings and its Subsidiaries) other than Indebtedness permitted by the terms of this Agreement;
(hh) the Letter of Credit Agreement Amendment; and
(ii) such other documents, opinions, certificates and agreements as the Agents may request.
Appears in 1 contract