Conditions Precedent to Making of Loans on the Closing Date. The obligation of the Lenders to make the initial Loans on the Closing Date, and the obligation of the Agent to cause the Letter of Credit Issuer to issue any Letter of Credit or Credit Support on the Closing Date, are subject to the following conditions precedent having been satisfied in a manner satisfactory to the Agent and each Lender: (a) The Agent shall have received each of the following documents, all of which shall be satisfactory in form and substance to the Agent and the Lenders: (i) certified copies of the certificate of incorporation, certificate of the organizational document of each of the Loan Parties, with all amendments, if any, certified by the appropriate Governmental Authority (provided that upon request by any Loan Party and with the consent of the Agent, any such certified certificate of incorporation, certificate of limited partnership, or comparable organizational document for such Loan Party to the extent not provided on the Closing Date, may be provided within thirty (30) days of the Closing Date, provided that an uncertified copy thereof has been delivered to the Agent together with a written statement by a Responsible Officer confirming that such copy is true, correct, and complete), and the bylaws, regulations, operating agreement, or similar governing document of each Loan Party, in each case certified by the corporate secretary, general partner, or comparable authorized representative of such Loan Party, as being true and correct and in effect on the Closing Date; (ii) certificates of incumbency and specimen signatures with respect to each Person authorized to execute and deliver this Agreement and the other Loan Documents on behalf of each Loan Party and each other Person executing any document, certificate, or instrument to be delivered in connection with this Agreement and the other Loan Documents and, in the case of the Borrower, to request Borrowings and the issuance of Letters of Credit or Credit Support; (iii) a certificate evidencing the existence of each Loan Party, and certificates evidencing the good standing of each Loan Party in the jurisdiction of its organization and in each other jurisdiction in which it is required to be qualified as a foreign business entity to transact its business as presently conducted, provided that upon request by any Loan Party and with the consent of the Agent, certificates of good standing for any Loan Party from a Governmental Authority other than the jurisdiction of its organization and chief executive office, to the extent not provided on the Closing Date, may be provided within thirty (30) days of the Closing Date; (iv) this Agreement and the other Loan Documents duly executed and delivered by each Loan Party that is a party thereto; (v) certified copies of all action taken by each Loan Party to authorize the execution, delivery, and performance of this Agreement, the other Loan Documents, and with respect to the Borrower, the Borrowings and the issuance of Letters of Credit and/or Credit Support; (vi) a certificate of each Loan Party signed by a Responsible Officer: (A) stating that all of the representations and warranties made or deemed to be made under this Agreement are true and correct as of the Closing Date, after giving effect to the Loans to be made at such time and the application of the proceeds thereof and the issuance of any Letter(s) of Credit and/or Credit Support at such time, (B) stating that no Default or Event of Default exists, (C) specifying the account of the Borrower which is a Designated Account, and (D) certifying as to such other factual matters as may be reasonably requested by the Agent; (vii) with respect to any Letter of Credit or Credit Support to be issued, all documentation required by Section 1.4, duly executed and delivered by each Loan Party, complying with the requirements of such Section; (A) UCC or PPSA financing statements and/or amendments to existing UCC or PPSA financing statements with respect to all Collateral as may be requested by the Agent (and in all events in each state of incorporation of an Obligated Party), duly executed by the respective Loan Parties, to the extent any such Liens may be perfected under the UCC or PPSA and (B) with respect to any Loan Party located in, or organized under the laws of, Canada and all filings and recordations required by Requirements of Law of Canada (including without limitation under the PPSA and RDPRM), respectively, as the case may be, in all jurisdictions that the Agent may deem necessary or desirable in order to perfect the Agent's Lien in all the Collateral, including without limitation, Accounts and Deposit Accounts of such Loan Party; (A) duly executed UCC-3 termination statements or assignments with respect to the UCC and such other releases or instruments, in each case in form and substance satisfactory to the Agent, as in each case shall be necessary to terminate and satisfy all Liens, except Permitted Liens, on the property of the Loan Parties, to the extent the Agent's Liens therein may be perfected under the UCC and (B) releases, terminations or other instruments under the Requirements of Law of Canada (including without limitation under the PPSA and other applicable law), and such other releases or instruments, in each case in form and substance satisfactory to the Agent, in each case as shall be necessary to terminate and satisfy all Liens, except Permitted Liens, on all the Collateral, including without limitation, the Accounts and Deposit Accounts of any Loan Party; (x) as may be required by the Agent in its discretion, notifications of security interests, in patents, trademarks and copyrights under the Security Agreement, as applicable, with respect to any and all Proprietary Rights, if any, owned by any Loan Party which must be registered with any Governmental Authority to perfect the Agent's Liens in such Proprietary Rights, duly executed by each such Consolidated Member, as applicable; (xi) each Guaranty Agreement (including the Applica Canada Guarantee), duly executed and delivered by each Person required pursuant to Section 7.18; (A) stock certificates and stock powers (duly executed in blank) for all Capital Stock (to the extent certificated) owned by a Loan Party in any Loan Party, in form and substance satisfactory to the Agent and (B) as may be required by the Agent in its discretion, "control" agreements (pursuant to the UCC), each duly executed, as the Agent may request with respect to any other Investment Property listed in Schedule 6.27; (xiii) a Borrowing Base Certificate effective as of the Business Day preceding the day such initial Loans are to be funded or any such Letter of Credit or Credit Support is to be issued; (xiv) as requested by the Agent in its discretion, a landlord's or mortgagee's waiver and consent agreement, in form and substance reasonably acceptable to the Agent, duly executed on behalf of each landlord or mortgagee, as the case may be, of Real Estate on which any Collateral is located provided, that the Agent may, in its discretion, establish, without duplication, a reserve in an amount equal to three (3) months rent with respect to the Collateral located on any Real Estate for which the Agent has not received an acceptable waiver and consent agreement); (xv) Each Blocked Account Agreement (including each Applica Canada Blocked Account Agreement) duly executed as required by the Security Agreement; (xvi) the Applica Canada Security Agreement duly executed and delivered by Applica Canada; (A) the Agent shall have received satisfactory evidence that the Agent has a valid, exclusive (other than Permitted Liens), and perfected first priority security interest, lien, collateral assignment, and pledge as of such date in all Collateral as security for all Obligations, to the extent any such Liens may be perfected under the UCC (excluding any Liens on vehicles for which a certificate of title has been issued and Liens perfected solely by possession, but only to the extent the Agent has not requested perfection of its Liens in such vehicles or possession of such Collateral) and (B) with respect to any Loan Party located in, or organized under the laws of Canada, the Agent shall have received satisfactory evidence that the Agent has a valid, exclusive (other than Permitted Liens), and perfected first priority Lien in all personal Property of any such Loan Party, to the extent any such Liens may be perfected under the Requirements of Law of Canada including without limitation under the PPSA and other applicable law respectively, as the case may be, in each case in form and substance satisfactory to the Agent; provided further, that upon the Agent's request, the Loan Parties shall provide any additional agreement, document, instrument, certificate, or other item relating to any Collateral as may be required for perfection under any Requirement of Law; (xviii) opinions of counsel for the Loan Parties, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel; and (xix) such other documents and instruments as the Agent or any Lender may reasonably request. (b) After giving effect to the making of all Loans (including any Loans made to finance payment or reimbursement for fees, costs, and expenses then payable under or pursuant to this Agreement) and issuance of all Letters of Credit and Credit Support and with all of their obligations current, the Loan Parties shall have remaining Availability in an amount not less than $25,000,000 on the Closing Date. (c) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as if made on the Closing Date. (d) No Event of Default shall exist or would exist after giving effect to the Refinancing, the Loans to be made and the Letters of Credit and Credit Support to be issued. (e) Subject to Section 13.7 hereof, the Loan Parties shall have paid all fees and expenses of Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby to the extent invoiced. (f) Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement. (g) All proceedings taken in connection with the execution of this Agreement, the other Loan Documents, and all documents and papers relating thereto shall be reasonably satisfactory in form, scope, and substance to the Agent and the Lenders. (h) Without limiting the generality of the items described above, the Loan Parties and each Person guaranteeing or securing payment of the Obligations shall have delivered or caused to be delivered to the Agent (in form and substance reasonably satisfactory to the Agent), the financial statements, instruments, resolutions, documents, agreements, certificates, opinions and other items required by the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit or Credit Support issued on the Closing Date shall be deemed to be a representation and warranty made by the Loan Parties to the effect that all of the conditions precedent to the making of such Loans or issuance of such Letters of Credit or Credit Support have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Loan Parties, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (ii) all documents sent to such Lender for approval, consent, or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Credit Agreement (Applica Inc)
Conditions Precedent to Making of Loans on the Closing Date. The obligation of the Lenders to make the initial Revolving Loans on the Closing Date, and the obligation of the Administrative Agent to cause the Letter of Credit Issuer to issue any Letter of Credit or Credit Support on the Closing Date, are is subject to the following conditions precedent having been satisfied in a manner satisfactory to the Administrative Agent and each Lender:.
(a) This Agreement shall have been executed and delivered by each party hereto;
(b) The Administrative Agent shall have received each of the following documentsfrom each Obligated Party, all of which shall be satisfactory in form and substance to the Administrative Agent and the Lenders:
(i) certified copies of the certificate Organization Certificate of incorporation, certificate of the organizational document of each of the Loan Partiessuch Obligated Party, with all amendmentsamendments thereto, if any, each certified by the appropriate Governmental Authority (provided that upon request by any Loan Party and with the consent of the Agentjurisdiction of such Obligated Party’s formation, any such certified certificate of incorporation, certificate of limited partnership, or comparable organizational document for such Loan Party to the extent not provided on the Closing Date, may be provided within thirty organization (30as applicable) days of the Closing Date, provided that an uncertified copy thereof has been delivered to the Agent together with a written statement by a Responsible Officer confirming that such copy is true, correct, and complete), and the bylaws, regulations, operating agreement, or similar governing document of each Loan Party, in each case certified by the corporate secretary, general partner, or comparable authorized representative of such Loan Party, Obligated Party as being true and correct true, correct, complete, and in effect on the Closing Date;
(ii) certificates copies of incumbency and specimen signatures with respect to each Person authorized to execute and deliver this the Management Agreement and of such Obligated Party certified by the other Loan Documents on behalf of each Loan Party and each other Person executing any documentsecretary, certificategeneral partner, or instrument to be delivered comparable authorized representative of such Obligated Party as being true, correct, complete, and in connection with this Agreement and effect on the other Loan Documents and, in the case of the Borrower, to request Borrowings and the issuance of Letters of Credit or Credit SupportClosing Date;
(iii) copies of duly approved Resolutions authorizing the execution and delivery of the Loan Documents to which such Obligated Party is a party, and, with respect to the Borrowers, authorizing the Borrowings, certified by the secretary, general partner, or comparable authorized representative of such Obligated Party as being true, correct, complete, and in effect on the Closing Date;
(iv) a certificate evidencing the existence of each Loan such Obligated Party, and certificates evidencing the good standing and tax status of each Loan such Obligated Party in the jurisdiction of its organization and in each other jurisdiction in which it is required to be qualified as a foreign business entity to transact its business as presently conducted, provided that upon request by any Loan Party and with the consent of the Agent, certificates of good standing for any Loan Party from a Governmental Authority other than the jurisdiction of its organization and chief executive office, to the extent not provided on the Closing Date, may be provided within thirty (30) days of the Closing Date;; and
(ivv) a certificate of incumbency and specimen signatures with respect to each individual authorized to execute and deliver this Agreement and the other Loan Documents on behalf of such Obligated Party, and any other individual executing any document, certificate, or instrument to be delivered in connection with this Agreement and the other Loan Documents and, in the case of each Borrower, to request Borrowings;
(c) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, each of the following:
(i) with respect to any Letter of Credit to be issued, and with respect to each Existing Letter of Credit, all documentation required by Section 2.4, duly executed by a Responsible Officer of the applicable Borrower;
(ii) a Guaranty Agreement duly executed and delivered by each Loan Obligated Party that is a party theretoas required pursuant to Section 8.25;
(v) certified copies of all action taken by each Loan Party to authorize the execution, delivery, and performance of this Agreement, the other Loan Documents, and with respect to the Borrower, the Borrowings and the issuance of Letters of Credit and/or Credit Support;
(viiii) a certificate of each Loan Party signed the Obligated Parties executed by a Responsible OfficerOfficer of each Obligated Party:
(A) stating that all of the representations and warranties made or deemed to be made under this Agreement are true and correct as of the Closing Date, after giving effect to the Loans to be made at such time and the application of the proceeds thereof and the issuance of any Letter(s) of Credit and/or Credit Support at such time,
(B) stating that no Default or Event of Default exists,
(C) specifying the account of the Borrower which Borrowers that is a Designated the Funding Account, ; and
(DB) certifying as to such other factual matters as may be reasonably requested by the Administrative Agent or any Lender;
(iv) each Deposit Account Control Agreement required to be provided pursuant to Section 10.2(g);
(v) a Deposit Account Control Agreement with respect to the Clearing Account;
(vi) a Mortgage with respect to 6▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Colorado Springs, Colorado, subject only to that certain mortgage in favor of U.S. Bank, together with a commitment for an ALTA policy of title insurance for the fair market value of such property without any exceptions except as may be acceptable to Administrative Agent;
(vii) with respect to any Letter of Credit or Credit Support each Collateral Waiver Agreement required to be issued, all documentation required by provided pursuant to Section 1.4, duly executed and delivered by each Loan Party, complying with the requirements of such Section10.2(c);
(Aviii) acknowledgment copies of proper UCC or PPSA financing statements and/or amendments to existing UCC or PPSA financing statements with respect to all Collateral as may be requested the Collateral, duly authorized by the Agent (and in all events in each state of incorporation of an Obligated Party), duly executed by the respective Loan Parties, to filed on or before the extent any such Liens may be perfected under the UCC or PPSA and (B) with respect to any Loan Party located in, or organized under the laws of, Canada and all filings and recordations required by Requirements of Law of Canada (including without limitation under the PPSA and RDPRM), respectively, as the case may be, Closing Date in all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Agent's Lien in all ’s Liens or, at the CollateralAdministrative Agent’s option, including without limitation, Accounts and Deposit Accounts such other evidence satisfactory to the Administrative Agent of the filing of such Loan Partyfinancing statements;
(Aix) duly executed UCC-3 termination financing statements or assignments with respect to the UCC and such other releases or instruments, in each case in form and substance satisfactory to the Agent, as in each case shall be necessary to terminate and satisfy all Liens, except Permitted Liens, on the property of the Loan Parties, to the extent the Agent's Liens therein may be perfected under the UCC and (B) releases, terminations or other instruments under the Requirements of Law of Canada (including without limitation under the PPSA and other applicable law), and such other releases or instruments, in each case in form and substance satisfactory to the Agent, in each case as shall be necessary to terminate and satisfy all Liens, except Permitted Liens, on all the Collateral, including without limitation, the Accounts and Deposit Accounts of any Loan Party;
(x) as may be required by the Agent in its discretion, notifications of security interests, in patents, trademarks and copyrights under the Security Agreement, as applicable, with respect to any and all Proprietary Rights, if any, owned by any Loan Party which must be registered with any Governmental Authority to perfect the Agent's Liens in such Proprietary Rights, duly executed by each such Consolidated Member, as applicable;
(xi) each Guaranty Agreement (including the Applica Canada Guarantee), duly executed and delivered by each Person required pursuant to Section 7.18;
(A) stock certificates and stock powers (duly executed in blank) for all Capital Stock (to the extent certificated) owned by a Loan Party in any Loan Party, in form and substance satisfactory to the Agent and (B) as may be required by the Agent in its discretion, "control" agreements (pursuant to the UCC), each duly executedAdministrative Agent, as shall be necessary to terminate all existing UCC filings on the Agent may request with respect to any other Investment Property listed in Schedule 6.27;
(xiii) a Borrowing Base Certificate effective as of the Business Day preceding the day such initial Loans Obligated Parties that are to be funded or any such Letter of Credit or Credit Support is to be issued;
(xiv) as requested by the Agent in its discretionnot Permitted Liens, a landlord's or mortgagee's waiver and consent agreement, in form and substance reasonably acceptable to the Agent, duly executed on behalf of each landlord or mortgagee, as the case may be, of Real Estate on which any Collateral is located provided, that the Agent may, in its discretion, establish, without duplication, a reserve in an amount equal to three (3) months rent with respect to the Collateral located on any Real Estate for which the Agent has not received an acceptable waiver and consent agreement);
(xv) Each Blocked Account Agreement (including each Applica Canada Blocked Account Agreement) duly executed as required by the Security Agreement;
(xvi) the Applica Canada Security Agreement duly executed and delivered by Applica Canada;
(A) the Agent shall have received satisfactory evidence that the Administrative Agent has a valid, exclusive (other than except for Permitted Liens), and perfected first priority security interest, lien, collateral assignment, and pledge (except for Permitted Liens that according to the terms of this Agreement are permitted to have priority over the Agent’s Liens) Lien as of such date the Closing Date in all the Collateral as security for all the Obligations, to the extent any such Liens may be perfected under the UCC (but excluding any Liens on vehicles for which a certificate of title has been issued and Liens perfected solely by possession, but only to the extent the Administrative Agent has not requested perfection of its Liens in such vehicles or possession of such Collateral) and (B) with respect to any Loan Party located in, or organized under the laws of Canada, the Agent shall have received satisfactory evidence that the Agent has a valid, exclusive (other than Permitted Liens), and perfected first priority Lien in all personal Property of any such Loan Party, to the extent any such Liens may be perfected under the Requirements of Law of Canada including without limitation under the PPSA and other applicable law respectively, as the case may be, in each case in form and substance satisfactory to the Administrative Agent; provided further, that upon the Administrative Agent's ’s request, the Loan Obligated Parties shall provide any additional agreement, document, instrument, certificate, or other item relating to any other Collateral as may be required for perfection under any Requirement of Law;
(xviiix) a Borrowing Base Certificate that is equivalent to that which would otherwise be required under Sections 6.2(k)(i) and (ii);
(xi) evidence, in form, scope, and substance satisfactory to the Administrative Agent, of all insurance coverage, with appropriate loss payable endorsements, as required by this Agreement;
(xii) satisfactory evidence that all filings, consents, or approvals with or of the owners of any Capital Stock of any Obligated Party, any Governmental Authority, or any other third party have been made or obtained, as applicable;
(xiii) a pledge agreement, in form and substance satisfactory to the Administrative Agent in its sole discretion, executed by each Obligated Party with regard to the stock or other membership ownership of such Obligated Party in its respective Subsidiaries in such percentages as the Administrative Agent may determine in its sole discretion, accompanied by (a) the original stock certificate, or certificate of membership, for any such certificated interest, and (b) an assignment separate from certificate executed in blank; and
(xiv) such other agreements, certificates, documents, and instruments as the Administrative Agent or any Lender may reasonably request;
(d) The Administrative Agent shall have received signed opinions of counsel for the Loan Obligated Parties, opining as to such matters in connection with the transactions contemplated by this Agreement as the Administrative Agent may request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Administrative Agent, the Lenders, and their respective counsel; and;
(xix) such other documents and instruments as the Agent or any Lender may reasonably request.
(be) After giving effect to all Borrowings on the making Closing Date and payment of all Loans (including any Loans made to finance payment or reimbursement for fees, costs, fees and expenses then payable under or pursuant to this Agreement) and issuance of all Letters of Credit and Credit Support due hereunder, and with all of their the Borrowers’ indebtedness, liabilities, and obligations current, the Loan Parties Unused Availability shall have remaining Availability in an amount not be less than $25,000,000 on the Closing Date.8,500,000;
(cf) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as if made on the Closing Date.correct;
(dg) No Event of Default shall exist or would exist after giving effect to the Refinancing, the Loans to be made and the Letters of Credit and Credit Support to be issued.
(e) Subject to Section 13.7 hereof, the Loan Parties The Borrowers shall have paid all fees and expenses of the Administrative Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby to the extent invoiced.invoiced (or shall have made provision for the direct payment thereof out of the proceeds of any Borrowing to be funded on the Closing Date);
(fh) No Default or Event of Default shall exist or would exist after giving effect to the Borrowings to be made on the Closing Date;
(i) The Administrative Agent and the Lenders shall have had an opportunity to examine the books of account and other records and files of the Obligated Parties and to make copies thereof, to inspect each of the locations where any Obligated Party maintains any Inventory, to review each of the material licenses of any Obligated Party and the contracts referenced in Section 7.24, and to conduct a pre-closing audit that shall include verification of Inventory, Accounts, and the Borrowing Base, and the results of such examination and audit shall have been satisfactory to the Administrative Agent and the Lenders in all respects;
(j) The Administrative Agent shall have received evidence, in form, scope, had an opportunity to review all supplier and substance, reasonably customer agreements and the results of such examination and the contents of such agreements shall have been satisfactory to the Agent, of Administrative Agent in all insurance coverage as required by this Agreement.respects;
(gk) All proceedings taken by the Obligated Parties in connection with the execution of this Agreement, the other Loan Documents, and all documents and papers relating thereto shall be reasonably satisfactory in form, scope, and substance to the Administrative Agent and the Lenders.; and
(hl) Without limiting the generality of the items described above, each of the Loan Obligated Parties and each other Person guaranteeing or securing payment of the Obligations shall have delivered or caused to be delivered to the Administrative Agent (in form and substance reasonably satisfactory to the Administrative Agent), the financial statements, instruments, resolutions, documents, agreements, certificates, opinions opinions, and other items required by the AgentAdministrative Agent and the Lenders. The acceptance by the Borrower Borrowers of any Loans made or Letters of Credit or Credit Support issued on the Closing Date shall be deemed to be a representation and warranty made by each of the Loan Obligated Parties to the effect that all of the conditions precedent to the making of such Loans or issuance of such Letters of Credit or Credit Support have been satisfied, with the same effect as delivery to the Administrative Agent and the Lenders of a certificate signed by a Responsible Officer of each of the Loan Obligated Parties, dated the Closing Date, to such effect. Execution and delivery to the Administrative Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that that: (i1) all conditions precedent in this Section 9.1 have been fulfilled to the satisfaction of such Lender; (2) the decision of such Lender to execute and deliver to the Administrative Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Administrative Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, 9.1; and (ii3) all documents sent to such Lender for approval, consent, or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Loan and Security Agreement (Mercury Air Group Inc)
Conditions Precedent to Making of Loans on the Closing Date. The obligation of the Lenders to make the initial any Revolving Loans on the Closing Date, and the obligation of the Agent Agents to cause the Letter of Credit Issuer to issue any Letter of Credit or Credit Support on the Closing Date, are subject to the following conditions precedent having been satisfied in a manner satisfactory to the each Agent and each Lender:.
(a) This Agreement shall have been executed and delivered by each party hereto.
(b) The Agent Agents shall have received duly executed copies of each of the Proprietary Rights Security Agreements, the Intercreditor Agreement, the GE Intercreditor Agreement, each Fee Letter and the Aircraft Mortgage.
(c) The Agents shall have received each of the following documentsfrom each Obligated Party, all of which shall be satisfactory in form and substance to each of the Agent Agents and the Lenders:
(i) certified copies of the certificate Organization Certificate of incorporation, certificate of the organizational document of each of the Loan Partiessuch Obligated Party, with all amendmentsamendments thereto, if any, each certified by the appropriate Governmental Authority (provided that upon request by any Loan Party and with the consent of the Agentjurisdiction of such Obligated Party’s formation, any such certified certificate of incorporation, certificate of limited partnership, or comparable organizational document for such Loan Party to the extent not provided on the Closing Date, may be provided within thirty organization (30as applicable) days of the Closing Date, provided that an uncertified copy thereof has been delivered to the Agent together with a written statement by a Responsible Officer confirming that such copy is true, correct, and complete), and the bylaws, regulations, operating agreement, or similar governing document of each Loan Party, in each case certified by the corporate secretary, general partner, or comparable authorized representative of such Loan Party, Obligated Party as being true and correct true, correct, complete, and in effect on the Closing Date;
(ii) certificates copies of incumbency and specimen signatures with respect to each Person authorized to execute and deliver this the Management Agreement and of such Obligated Party certified by the other Loan Documents on behalf of each Loan Party and each other Person executing any documentsecretary, certificategeneral partner, or instrument to be delivered comparable authorized representative of such Obligated Party as being true, correct, complete, and in connection with this Agreement and effect on the other Loan Documents and, in the case of the Borrower, to request Borrowings and the issuance of Letters of Credit or Credit SupportClosing Date;
(iii) copies of duly approved Resolutions authorizing the execution and delivery of the Loan Documents to which such Obligated Party is a party, and, with respect to the Borrowers, authorizing the Borrowings, certified by the secretary, general partner, or comparable authorized representative of such Obligated Party as being true, correct, complete, and in effect on the Closing Date;
(iv) a certificate evidencing the existence of each Loan such Obligated Party, and certificates evidencing the good standing and tax status of each Loan such Obligated Party in the jurisdiction of its organization and in each other jurisdiction in which it is required to be qualified as a foreign business entity to transact its business as presently conducted, provided that upon request by any Loan Party and with the consent of the Agent, certificates of good standing for any Loan Party from a Governmental Authority other than the jurisdiction of its organization and chief executive office, to the extent not provided on the Closing Date, may be provided within thirty (30) days of the Closing Date;; and
(ivv) a certificate of incumbency and specimen signatures with respect to each individual authorized to execute and deliver this Agreement and the other Loan Documents on behalf of such Obligated Party, and any other individual executing any document, certificate, or instrument to be delivered in connection with this Agreement and the other Loan Documents and, in the case of each Borrower, to request Borrowings.
(d) The Agents shall have received, in form and substance satisfactory to each Agent, each of the following:
(i) with respect to any Letter of Credit to be issued, all documentation required by Section 2.4, duly executed by a Responsible Officer of the applicable Borrower;
(ii) a Guaranty Agreement duly executed and delivered by each Loan Obligated Party that is a party theretoas required pursuant to Section 8.24;
(v) certified copies of all action taken by each Loan Party to authorize the execution, delivery, and performance of this Agreement, the other Loan Documents, and with respect to the Borrower, the Borrowings and the issuance of Letters of Credit and/or Credit Support;
(viiii) a certificate of each Loan Party signed the Borrowers executed by a Responsible OfficerOfficer of each Borrower:
(A) stating that all of the representations and warranties made or deemed to be made under this Agreement are true and correct as of the Closing Date, after giving effect to the Loans to be made at such time and the application of the proceeds thereof and the issuance of any Letter(s) of Credit and/or Credit Support at such time,
(B) stating that no Default or Event of Default exists,
(C) specifying the account of the Borrower which Borrowers that is a Designated the Funding Account,
(B) attaching certified copies of (1) each of the Second Lien Debt Documents and (2) the GE Sale and Leaseback Agreement, each to be in form and substance satisfactory to each of the Agents, and
(DC) certifying as to such other factual matters as may be reasonably requested by the Agenteither Agent or any Lender;
(viiiv) with respect to any Letter of Credit or Credit Support each Deposit Account Control Agreement required to be issued, all documentation required by provided pursuant to Section 1.4, duly executed 10.2(g) and delivered by each Loan Party, complying with the requirements of such SectionSection 10.6(c);
(Av) each Collateral Waiver Agreement required to be provided pursuant to Section 10.2(c);
(vi) acknowledgment copies of proper UCC or PPSA financing statements and/or amendments to existing UCC or PPSA financing statements with respect to all Collateral as may be requested by the Agent (and in all events in each state of incorporation of an Obligated Party)Collateral, duly executed authorized by each of the respective Loan Obligated Parties, to filed on or before the extent any such Liens may be perfected under the UCC or PPSA and (B) with respect to any Loan Party located in, or organized under the laws of, Canada and all filings and recordations required by Requirements of Law of Canada (including without limitation under the PPSA and RDPRM), respectively, as the case may be, Original Closing Date in all jurisdictions that either of the Agent Agents may deem necessary or desirable in order to perfect the Agent's Lien in all ’s Liens or, at the CollateralAgents’ option, including without limitation, Accounts and Deposit Accounts such other evidence satisfactory to the Agents of the filing of such Loan Partyfinancing statements;
(Avii) duly executed UCC-3 termination financing statements or assignments with respect to the UCC and such other releases or instruments, in each case in form and substance satisfactory to the Agent, as in each case shall be necessary to terminate and satisfy all Liens, except Permitted Liens, on the property of the Loan Parties, to the extent the Agent's Liens therein may be perfected under the UCC and (B) releases, terminations or other instruments under the Requirements of Law of Canada (including without limitation under the PPSA and other applicable law), and such other releases or instruments, in each case in form and substance satisfactory to the Agent, in each case as shall be necessary to terminate and satisfy all Liens, except Permitted Liens, on all the Collateral, including without limitation, the Accounts and Deposit Accounts of any Loan Party;
(x) as may be required by the Agent in its discretion, notifications of security interests, in patents, trademarks and copyrights under the Security Agreement, as applicable, with respect to any and all Proprietary Rights, if any, owned by any Loan Party which must be registered with any Governmental Authority to perfect the Agent's Liens in such Proprietary Rights, duly executed by each such Consolidated Member, as applicable;
(xi) each Guaranty Agreement (including the Applica Canada Guarantee), duly executed and delivered by each Person required pursuant to Section 7.18;
(A) stock certificates and stock powers (duly executed in blank) for all Capital Stock (to the extent certificated) owned by a Loan Party in any Loan Party, in form and substance satisfactory to the Agent and (B) as may be required by the Agent in its discretion, "control" agreements (pursuant to the UCC), each duly executedAgent, as shall be necessary to terminate all existing UCC filings on the Agent may request with respect to any other Investment Property listed in Schedule 6.27;
(xiii) a Borrowing Base Certificate effective as property of each of the Business Day preceding the day such initial Loans Obligated Parties that are to be funded or any such Letter of Credit or Credit Support is to be issued;
(xiv) as requested by the Agent in its discretionnot Permitted Liens, a landlord's or mortgagee's waiver and consent agreement, in form and substance reasonably acceptable to the Agent, duly executed on behalf of each landlord or mortgagee, as the case may be, of Real Estate on which any Collateral is located provided, that the Agent may, in its discretion, establish, without duplication, a reserve in an amount equal to three (3) months rent with respect to the Collateral located on any Real Estate for which the Agent has not received an acceptable waiver and consent agreement);
(xv) Each Blocked Account Agreement (including each Applica Canada Blocked Account Agreement) duly executed as required by the Security Agreement;
(xvi) the Applica Canada Security Agreement duly executed and delivered by Applica Canada;
(A) the Agent shall have received satisfactory evidence that the Collateral Agent has a valid, exclusive (other than except for Permitted Liens), and perfected first priority security interest, lien, collateral assignment, and pledge (except for Permitted Liens that according to the terms of this Agreement are permitted to have priority over the Agent’s Liens) Lien as of such date the Closing Date in all the Collateral as security for all the Obligations, to the extent any such Liens may be perfected under the UCC (but excluding any Liens on vehicles for which a certificate of title has been issued and Liens perfected solely by possession, but only to the extent neither of the Agent Agents has not requested perfection of its Liens in such vehicles or possession of such Collateral) and (B) with respect to any Loan Party located in, or organized under the laws of Canada, the Agent shall have received satisfactory evidence that the Agent has a valid, exclusive (other than Permitted Liens), and perfected first priority Lien in all personal Property of any such Loan Party, to the extent any such Liens may be perfected under the Requirements of Law of Canada including without limitation under the PPSA and other applicable law respectively, as the case may be, in each case in form and substance satisfactory to each of the Agents; provided that upon either of the Agent; provided further, that upon the Agent's ’s request, the Loan Obligated Parties shall provide any additional agreement, document, instrument, certificate, or other item relating to any other Collateral as may be required for perfection under any Requirement of Law;
(xviiiviii) opinions a Borrowing Base Certificate that calculates the Borrowing Base as of counsel for the Loan Partiesend of the Business Day immediately preceding the Closing Date;
(ix) evidence, each such opinion to be in a form, scope, and substance reasonably satisfactory to each of the Agents, of all insurance coverage, with appropriate loss payable endorsements, as required by this Agreement;
(x) satisfactory evidence that all filings, consents, or approvals with or of the owners of any Capital Stock of any Obligated Party, any Governmental Authority, or any other third party have been made or obtained, as applicable;
(xi) a revised sources and uses table with respect to the transactions contemplated to occur under the Transaction Documents on the Closing Date, which shall be in form and substance satisfactory to the AgentAgents and shall, in any event, include all of the Lenders, and their respective counseltransaction costs with respect thereto; and
(xixxii) such other documents agreements, certificates, documents, and instruments as the either Agent or any Lender may reasonably request.
(be) The Agents shall have received signed opinions of counsel for the Obligated Parties, opining as to such matters in connection with the transactions contemplated by this Agreement as either of the Agents may reasonably request, each such opinion to be in form, scope, and substance satisfactory to the Agents, the Lenders, and their respective counsel.
(f) After giving effect to all Borrowings on the making Closing Date and payment of all Loans (including any Loans made to finance payment or reimbursement for fees, costs, fees and expenses then payable due hereunder or due with respect to the other transactions contemplated under or the Transaction Documents (consistent with the sources and uses table delivered pursuant to this Agreementclause (d)(xi) and issuance of all Letters of Credit and Credit Support above), and with all of their the Borrowers’ indebtedness, liabilities, and obligations current, the Loan Parties Unused Availability shall have remaining Availability in an amount not be less than $25,000,000 on the Closing Date25,000,000.
(cg) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as if made on the Closing Datecorrect.
(dh) No Event of Default shall exist or would exist after giving effect to the Refinancing, the Loans to be made and the Letters of Credit and Credit Support to be issued.
(e) Subject to Section 13.7 hereof, the Loan Parties The Borrowers shall have paid (i) all fees and expenses of Agent the Agents and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby to the extent invoicedinvoiced and (ii) all fees payable to the Lenders on the Closing Date (or shall have made provision for the direct payment of all such fees, expenses and Attorney Costs out of the proceeds of any Borrowing to be funded on the Closing Date).
(fi) Agent No Default or Event of Default shall exist or would exist after giving effect to the Borrowings to be made on the Closing Date.
(j) The Agents and the Lenders shall have received evidencehad an opportunity to examine the books of account and other records and files of the Obligated Parties and to make copies thereof, to inspect each of the locations where any Obligated Party maintains any Inventory or other Collateral, to review each of the material licenses of any Obligated Party and the contracts referenced in form, scopeSection 7.24, and substanceto conduct a pre-closing audit that shall include verification of Inventory, reasonably Accounts, and the Borrowing Base, and the results of such examination and audit shall have been satisfactory to the Agent, of Agents and the Lenders in all insurance coverage as required by this Agreementrespects.
(gk) All proceedings taken by the Obligated Parties in connection with the execution of this Agreement, the other Loan Transaction Documents, and all documents and papers relating thereto shall be reasonably satisfactory in form, scope, and substance to the Agent Agents and the Lenders.
(hl) Without limiting the generality of the items described above, each of the Loan Obligated Parties and each other Person guaranteeing or securing payment of any of the Obligations shall have delivered or caused to be delivered to the Agent Agents (in form and substance reasonably satisfactory to each of the AgentAgents), the financial statements, instruments, resolutions, documents, agreements, certificates, opinions opinions, and other items required by either of the AgentAgents and the Lenders.
(m) Since December 31, 2003 there shall not have occurred any event, and no circumstances shall exist, that could reasonably be expected to result in a Material Adverse Effect.
(n) There shall exist no action, suit, investigation, litigation or proceeding pending, or to the knowledge of any of the Obligated Parties, threatened in any court or before any arbitrator or governmental instrumentality that (i) either of the Agents has determined could reasonably be expected to have a Material Adverse Effect or (ii) purports to adversely affect any of the Loan Documents or other Transaction Documents or any of the transactions contemplated thereby in any material respect.
(o) Each of the material agreements and contracts set forth on Schedule 7.24 shall be in form and substance satisfactory to each of the Agents.
(p) Each Inventory Appraisal prepared by ▇▇▇▇▇ Asset Services dated June 30, 2005 shall be in form and substance satisfactory to each of the Agents, and the Agents shall have received an update of each such Inventory Appraisal, each in form and substance satisfactory to each of the Agents.
(q) ▇▇▇▇▇ shall have received cash proceeds of at least $200,000,000 from the issuance to the Second Lien Lenders of the Second Lien Notes secured by a second Lien on the Collateral (hereinafter referred to as the “Second Lien Debt”), which Second Lien Debt and Liens securing the same shall have been issued and granted on terms and conditions and pursuant to documentation satisfactory to the Agents and their counsel in their sole discretion and shall be subject to the Intercreditor Agreement.
(r) The lessor under the GE Sale and Leaseback Agreement shall have entered into an intercreditor agreement with the Collateral Agent in form and substance satisfactory to the Agents (the “GE Intercreditor Agreement”).
(s) The Obligated Parties and their Subsidiaries shall have established cash management systems in form and substance satisfactory to each of the Agents.
(t) Each of the Agents shall be satisfied that no Inventory purchased by a Borrower from Xtreme Manufacturing, LLC contains or bears any Proprietary Rights of a third party (including Xtreme Manufacturing, LLC) which would make such Inventory ineligible under clause (k) of the definition of Eligible Inventory.
(u) Each of the Agents shall have received the Latest Projections referred to in clause (a) of that definition and the financial statements and pro forma balance sheet referred to in Sections 7.6(a) and (c), all of which shall be satisfactory to the Agents and the Lenders.
(v) The Junior Lien Debt shall have paid in full and all Liens granted in connection therewith shall have been released. The acceptance by the Borrower Borrowers of any Loans made or Letters of Credit or Credit Support issued on the Closing Date shall be deemed to be a representation and warranty made by each of the Loan Obligated Parties to the effect that all of the conditions precedent to the making of such Loans or issuance of such Letters of Credit or Credit Support have been satisfied, with the same effect as delivery to the Agent Agents and the Lenders of a certificate signed by a Responsible Officer of each of the Loan Obligated Parties, dated the Closing Date, to such effect. Execution and delivery to either of the Agent Agents by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i1) all conditions precedent in this Section 9.1 have been fulfilled to the satisfaction of such Lender, (2) the decision of such Lender to execute and deliver to either of the Agent Agents an executed counterpart of this Agreement was made by such Lender independently and without reliance on either of the Agent Agents or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.19.1, and (ii3) all documents sent to such Lender for approval, consent, or satisfaction were acceptable to such Lender.
Appears in 1 contract
Conditions Precedent to Making of Loans on the Closing Date. The obligation of the Lenders to make the initial Loans on the Closing Date, and the obligation of the Agent to cause the Letter of Credit Issuer to issue any Letter of Credit or Credit Support on the Closing Date, are subject to the following conditions precedent having been satisfied in a manner satisfactory to the Agent and each Lender:
(a) The Agent shall have received each of the following documents, all of which shall be satisfactory in form and substance to the Agent and the Lenders:
(i) a certificate of the corporate secretary, general partner or comparable authorized representative of each Loan Party, stating that the certified copies of the certificate of incorporation, certificate of the organizational document of each of the Loan Parties, with all amendments, if any, certified by the appropriate Governmental Authority (provided that upon request by any Loan Party and with the consent of the Agent, any such certified certificate of incorporation, certificate of limited partnership, or comparable organizational document for of each such Loan Obligated Party to the extent not provided on the Closing Date, may be provided within thirty (30) days of the Closing Date, provided that an uncertified copy thereof has been delivered to the Agent together with a written statement by a Responsible Officer confirming that such copy is true, correct, and complete), and the bylaws, regulations, operating agreement, or similar governing document of each such Loan PartyParty (in each case with all amendments, if any), delivered to the Agent in connection with the Original Credit Agreement, in each case certified by the corporate secretary, general partner, or comparable authorized representative of such Loan Party, as being are true and correct and in effect on the Closing Date;
(ii) certificates of incumbency and specimen signatures with respect to each Person authorized to execute and deliver this Agreement and the other Loan Documents on behalf of each Loan Party and each other Person executing any document, certificate, or instrument to be delivered in connection with this Agreement and the other Loan Documents and, in the case of the each Borrower, to request Borrowings and the issuance of Letters of Credit or Credit Support;
(iii) a certificate of the corporate secretary, general partner or comparable authorized representative of each Loan Party, stating that the certificates evidencing the existence of each such Loan Party, and the certificates evidencing the good standing of each such Loan Party Party, delivered to the Agent in connection with the jurisdiction of its organization Original Credit Agreement, in each case are true and correct and in each other jurisdiction in which it is required to be qualified as a foreign business entity to transact its business as presently conducted, provided that upon request by any Loan Party and with the consent of the Agent, certificates of good standing for any Loan Party from a Governmental Authority other than the jurisdiction of its organization and chief executive office, to the extent not provided effect on the Closing Date, may be provided within thirty (30) days Date as if such certificates had been issued as of the Closing Date;
(iv) this Agreement and the other Loan Documents duly executed and delivered by each Loan Party that is a party thereto;
(v) certified copies of all action taken by each Loan Party to authorize the execution, delivery, and performance of this Agreement, the other Loan Documents, and with respect to the BorrowerBorrowers, the Borrowings and the issuance of Letters of Credit and/or Credit Support;
(viv) a certificate of each Loan Party signed by a Responsible Officer:
(A) stating that all of the representations and warranties made or deemed to be made under this Agreement are true and correct as of the Closing Date, after giving effect to the Loans to be made at such time and the application of the proceeds thereof and the issuance of any Letter(s) of Credit and/or Credit Support at such time,
(B) stating that no Default or Event of Default exists,
(C) specifying the account of the Borrower Borrowers which is a the Designated Account, and
(D) certifying as to (i) attachment of true an correct copies of the Synthetic Lease Transaction Documents and the Convertible Subordinated Debt Documents and (ii) such other factual matters as may be reasonably requested by the Agent;
(viivi) with respect to any Letter of Credit or Credit Support to be issued, all documentation required by Section 1.4, duly executed;
(vii) a Revolving Loan Note payable to the order of each Lender in the amount of its Commitment with respect thereto, duly executed and delivered by each Loan PartyBorrower, complying with the requirements of such SectionSection 1.2(b);
(A) UCC or PPSA financing statements and/or amendments to existing UCC or PPSA financing statements with respect to all Collateral as may be requested by the Agent (and in all events in each state of incorporation of an Obligated Party)Agent, duly executed by the respective Loan Obligated Parties, to the extent any such Liens may be perfected under the UCC or PPSA and (B) with respect to any Loan Party located inthat is an Eligible Foreign Subsidiary, or organized under the laws of, Canada and all filings and recordations required by Requirements of Law of Canada (including without limitation under the PPSA and RDPRM), respectively, as the case may be, in all jurisdictions that the Agent may deem necessary or desirable in order to perfect the Agent's Lien in all the Collateral, including without limitation, Accounts and Deposit Accounts of Collateral owned by such Loan Party;
(A) duly executed UCC-3 termination statements or assignments with respect to the UCC and such other releases or instruments, in each case in form and substance satisfactory to the Agent, as in each case as shall be necessary to terminate and satisfy all Liens, except Permitted Liens, on the property of the Loan Parties, to the extent the Agent's Liens therein may be perfected under the UCC and and
(B) releases, terminations terminations, or other instruments under the Requirements of Law of Canada each Eligible Foreign Jurisdiction (including including, without limitation limitation, under the PPSA and other applicable lawthe CCQ), and such other releases or instruments, in each case in form and substance satisfactory to the Agent, in each case as shall be necessary to terminate and satisfy all Liens, except Permitted Liens, on all the Collateral, including without limitation, the Accounts and Deposit Accounts of any Loan Party;
(x) as may be required by the Agent in its discretion, notifications of security interestsany Copyright Security Agreement, in patents, trademarks and copyrights under the Patent Security Agreement and/or Trademark Security Agreement, as applicable, with respect to any and all Proprietary Rights, if any, owned by any Loan Party which must be registered with any Governmental Authority to perfect the Agent's Liens in such Proprietary Rights, duly executed by each such Consolidated MemberLoan Party, as applicable;
(xi) each Guaranty Agreement (including the Applica Canada Guarantee)Agreement, duly executed and delivered by each Person Loan Party required pursuant to Section 7.187.27;
(xii) the Security Agreement, duly executed by the Loan Parties, and all Canadian Security Documents (or amendments to Canadian Security Documents executed in connection with the Original Credit Agreement), duly executed by the Loan Parties that are Canadian Subsidiaries, as applicable, as required by the Agent;
(A) except as previously delivered to the Agent in connection with the Original Credit Agreement, stock certificates and stock powers (duly executed in blank) for all Capital Stock referenced in clause (to the extent certificatedii) owned by a Loan Party in any Loan Partyof Section 7.28, in form and substance satisfactory to the Agent and Agent, (B) as may be required by the Agent in its discretionreasonable discretion for any Investment Property, "control" agreements (pursuant to the UCCUCC or the laws of any foreign jurisdiction), each duly executed, as the Agent may request with respect to any other Investment Property (other than Capital Stock of a Subsidiary of the Parent) listed in Schedule 6.27, and (C) such other notices, acknowledgments, and other documents as may be required in order to perfect the Agent's Lien in such Investment Property pursuant to applicable Requirements of Law;
(xiiixiv) a Borrowing Base Certificate effective as of the Business Day preceding the day such initial Loans are to be funded or any such Letter of Credit or Credit Support is to be issued;
(xivxv) as requested by the Agent in its discretion, a landlord's or mortgagee's waiver and consent agreement, in form and substance reasonably acceptable to the Agent, duly executed on behalf of each landlord or mortgagee, as the case may be, of Real Estate on which any books and records in respect of the Collateral is located (provided that the Loan Parties may defer delivery of any such agreements for a period not to exceed ninety (90) days from the Closing Date; provided, further, that thereafter the Agent may, in its discretion, establish, without duplication, establish a reserve in an amount equal to three (3) months rent with respect to the Collateral located on any Real Estate for which the Agent has not received an acceptable such requested landlord's or mortgagee's waiver and consent agreement)agreement which has not been delivered to the Agent;
(xvxvi) Each each Blocked Account Agreement (including each Applica Canada Blocked Account Agreement) duly executed as required by the Security Agreement;
(xvi) Agreement or the Applica Canada Foreign Security Agreement duly executed Documents or as otherwise required by the Agent, and delivered by Applica Canadathe Agent shall have established all administrative requirements in respect of collections on Accounts of the Loan Parties in a manner satisfactory to the Agent;
(A) the Agent shall have received satisfactory evidence that the Agent has a valid, exclusive (other than Permitted Liens), ) and perfected first priority security interest, lien, collateral assignment, and pledge as of such date Lien in all Collateral as security for all Obligationsrequired by Section 7.28, to the extent any such Liens may be perfected under the UCC or the Requirements of Law of each applicable Eligible Foreign Jurisdiction (excluding any Liens on vehicles for which a certificate of title has been issued and Liens perfected solely by possession, but only to the extent the Agent has not requested perfection of its Liens in such vehicles or possession of such Collateral) and (B) with respect to any Loan Party located in, or organized under the laws of Canada, the Agent shall have received satisfactory evidence that the Agent has a valid, exclusive (other than Permitted Liens), and perfected first priority Lien in all personal Property of any connection therewith each Loan Party shall have executed and delivered to the Agent such Loan Party, to the extent any such Liens Documents as may be perfected under required by the Requirements of Law of Canada including without limitation under the PPSA and other applicable law respectively, as the case may beAgent, in each case in form and substance satisfactory to the Agent; provided further, that upon the Agent's request, the Loan Parties shall provide any additional agreement, document, instrument, certificate, or other item relating to any Collateral as may be required for perfection under any Requirement of Law;
(xviii) with respect to Real Estate referenced in clause (iii) of Section 7.28, the applicable Loan Party shall have executed and delivered to the Agent an amendment or modification of the Mortgage previously executed and delivered in connection with the Original Credit Agreement with respect to such Real Estate, in each case in proper form for recording in the jurisdiction in which such Real Estate is located, in form and substance reasonably satisfactory to the Agent, and true and complete copies of each of the following to the extent it exists and is in the possession or control of any Consolidated Member and has not already been delivered to the Agent in connection with the Original Credit Agreement, in each case with respect to such Real Estate:
(1) any owner's or mortgagee's policy of title insurance, (2) any environmental site assessment, (3) any boundary survey, and (4) such other information, documentation, opinions, and certifications with respect to any such parcel of Real Estate as may be reasonably requested by the Agent;
(xix) signed opinions of counsel for the Loan Parties, opining as to such matters in connection with the transactions contemplated by this Agreement as the Agent may reasonably request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel;
(xx) the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement;
(xxi) the Agent shall have received true and complete copies of the Convertible Subordinated Debt Documents, with all exhibits and schedules thereto, together with all opinions and related agreements executed and/or delivered in connection therewith;
(xxii) the Agent shall have received true and complete copies of all Synthetic Lease Transaction Documents, with all exhibits and schedules thereto, together with all opinions and related agreements executed and/or delivered in connection therewith; and
(xixxxiii) such other documents and instruments as the Agent or any Lender may reasonably request.
(b) After On the Closing Date, after giving effect to the making of all Loans (including any Loans made to finance payment or reimbursement for fees, costs, and expenses then payable under or pursuant to this Agreement) and issuance of all Letters of Credit and Credit Support and with all of their obligations currentcurrent to the Agent's satisfaction, the Loan Parties Availability Without Regard to Line Constraint shall have remaining Availability be in an amount not less than $25,000,000 on the Closing Date40,000,000.
(c) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as if made on the Closing Datecorrect.
(d) No Default or Event of Default shall exist or would exist after giving effect to the Refinancing, the Loans to be made and the Letters of Credit and Credit Support to be issued.
(e) Subject to Section 13.7 hereof, the The Loan Parties shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby to the extent invoiced.
(f) The Agent and the Lenders shall have received evidence, in form, scopehad an opportunity to examine the books of account and other records and files of the Consolidated Members and to make copies thereof, and substanceto conduct a pre-closing audit which shall include, reasonably without limitation, verification of Accounts and the Borrowing Base, and the results of such examination and audit shall have been satisfactory to the Agent, of Agent and the Lenders in all insurance coverage as required by this Agreementrespects.
(g) All proceedings taken in connection with the execution of this Agreement, the other Loan Documents, and all documents and papers relating thereto shall be reasonably satisfactory in form, scope, and substance to the Agent and the Lenders.
(h) Without limiting the generality of the items described above, the Loan Obligated Parties and each Person guaranteeing or securing payment of the Obligations shall have delivered or caused to be delivered to the Agent (in form and substance reasonably satisfactory to the Agent), the financial statements, instruments, resolutions, documents, agreements, certificates, opinions and other items required by the Agent.
(i) The Agent and the Lenders shall be satisfied that the Loan Parties are able to comply with Collateral and financial reporting requirements under the Loan Documents.
(j) There shall exist no action, suit, investigation, litigation, or proceeding pending or threatened in any court or before any arbitrator or governmental authority that in the Agent's or any Lender's reasonable judgment (i) could reasonably be expected to have a Material Adverse Effect on the business, management, condition (financial or otherwise), operations, performance, properties, profits, or prospects of the Loan Parties or which could impair the Loan Parties' ability to perform satisfactorily under the Loan Documents or (ii) could materially and adversely affect the transactions contemplated by the Loan Documents. The acceptance by the Borrower Borrowers of any Loans made or Letters of Credit or Credit Support issued on the Closing Date shall be deemed to be a representation and warranty made by the Loan Parties to the effect that all of the conditions precedent to the making of such Loans or issuance of such Letters of Credit or Credit Support have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Loan Parties, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled or waived to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iiiii) all documents sent to such Lender for approval, consent, or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Credit Agreement (Egl Inc)
Conditions Precedent to Making of Loans on the Closing Date. The obligation of the Revolving Lenders to make any Revolving Loans on the Closing Date and of the Term Lenders to make the initial Term Loans on the Closing Date, and the obligation of the Agent Agents to cause the Letter of Credit Issuer to issue any Letter of Credit or Credit Support on the Closing Date, are subject to the following conditions precedent having been satisfied in a manner satisfactory to the each Agent and each Lender:.
(a) This Agreement shall have been executed and delivered by the Borrowers, the other Obligated Parties, the Majority Lenders (under and as defined in the First Amended and Restated Loan and Security Agreement), the Term Lenders and the Agents.
(b) The Agent Agents shall have received (i) a duly executed amendment to the Intercreditor Agreement, in form and substance satisfactory to the Agents and the Lenders, increasing the $175,000,000 amount in the definition of “First Lien Obligations” contained therein to $396,000,000 and (ii) a duly executed supplement to the Second Lien Debt Agreement, in form and substance satisfactory to the Agents and the Lenders, increasing the $175,000,000 amount in Section 4.09(b)(1) thereof to $396,000,000.
(c) The Agents shall have received each of the following documentsfrom each Obligated Party, all of which shall be satisfactory in form and substance to each of the Agent Agents and the Lenders:
(i) certified copies of the certificate Organization Certificate of incorporation, certificate of the organizational document of each of the Loan Partiessuch Obligated Party, with all amendmentsamendments thereto, if any, each certified by the appropriate Governmental Authority (provided that upon request by any Loan Party and with the consent of the Agentjurisdiction of such Obligated Party’s formation, any such certified certificate of incorporation, certificate of limited partnership, or comparable organizational document for such Loan Party to the extent not provided on the Closing Date, may be provided within thirty organization (30as applicable) days of the Closing Date, provided that an uncertified copy thereof has been delivered to the Agent together with a written statement by a Responsible Officer confirming that such copy is true, correct, and complete), and the bylaws, regulations, operating agreement, or similar governing document of each Loan Party, in each case certified by the corporate secretary, general partner, or comparable authorized representative of such Loan Party, Obligated Party as being true and correct true, correct, complete, and in effect on the Closing Date;
(ii) certificates copies of incumbency the Management Agreement of such Obligated Party certified by the secretary, general partner, or comparable authorized representative of such Obligated Party as being true, correct, complete, and specimen signatures with respect to each Person authorized to execute in effect on the Closing Date;
(iii) copies of duly approved Resolutions authorizing the execution and deliver delivery of this Agreement Agreement, the Term Loan Notes and the other Loan Documents on behalf of each Loan Party and each other Person executing any document, certificate, or instrument to be delivered entered into in connection with this Agreement and the other Loan Documents to which such Obligated Party is a party, and, with respect to the Borrowers, authorizing the Borrowings, certified by the secretary, general partner, or comparable authorized representative of such Obligated Party as being true, correct, complete, and in effect on the case of the Borrower, to request Borrowings and the issuance of Letters of Credit or Credit SupportClosing Date;
(iiiiv) a certificate evidencing the existence of each Loan such Obligated Party, and certificates evidencing the good standing and tax status of each Loan such Obligated Party in the jurisdiction of its organization and in each other jurisdiction in which it is required to be qualified as a foreign business entity to transact its business as presently conducted, provided that upon request by any Loan Party and with the consent of the Agent, certificates of good standing for any Loan Party from a Governmental Authority other than the jurisdiction of its organization and chief executive office, to the extent not provided on the Closing Date, may be provided within thirty (30) days of the Closing Date;; and
(ivv) a certificate of incumbency and specimen signatures with respect to each individual authorized to execute and deliver this Agreement and the other Loan Documents on behalf of such Obligated Party, and any other individual executing any document, certificate, or instrument to be delivered in connection with this Agreement and the other Loan Documents and, in the case of each Borrower, to request Borrowings.
(d) The Agents shall have received, in form and substance satisfactory to each Agent, each of the following:
(i) with respect to any Letter of Credit to be issued, all documentation required by Section 2.4, duly executed and delivered by each Loan Party that is a party theretoResponsible Officer of the applicable Borrower;
(vii) certified copies of all action taken by each Loan Party (A) an amendment to authorize the execution, delivery, and performance of this AgreementFee Letter among the Administrative Agent, the other Loan Documents, and with respect to the Borrower, the Borrowings Collateral Agent and the issuance of Letters of Credit and/or Credit SupportBorrowers duly executed by such parties modifying certain defined terms used therein and (B) the other Fee Letter duly executed by the Administrative Agent and the Borrowers;
(viiii) a certificate of each Loan Party signed the Borrowers executed by a Responsible OfficerOfficer of each Borrower:
(A) stating that all of the representations and warranties made or deemed to be made under this Agreement are true and correct as of the Closing Date, after giving effect to the Loans to be made at such time and the application of the proceeds thereof and the issuance of any Letter(s) of Credit and/or Credit Support at such time,
(B) stating that no Default or Event of Default exists,
(C) specifying the account of the Borrower which Borrowers that is the Funding Account,
(B) attaching a Designated Accountcertified copy of the Second Lien Debt Agreement and all amendments and supplements thereto, and
(DC) certifying as to such other factual matters as may be reasonably requested by either Agent or any Lender;
(iv) such amendments to the Agentother Loan Documents duly executed by the requisite parties as either Agent shall request in order to secure the Term Loan Obligations by the Collateral and to effectuate the other modifications contemplated by the amendment and restatement of the First Amended and Restated Loan and Security Agreement pursuant to this Agreement;
(v) the pro forma balance sheet required by Section 7.6(c);
(vi) evidence of the cancellation, upon the making of the Term Loans, of Second Lien Debt in the aggregate principal amount required under Section 2.3(a);
(vii) with respect to any Letter of Credit or Credit Support to be issued, all documentation required by Section 1.4, duly executed and delivered by each Loan Party, complying with the requirements of such Section;
(A) UCC or PPSA UCC-3 financing statements and/or amendments to existing UCC or PPSA financing statements with respect to all Collateral as may be requested by the Agent (and in all events in each state of incorporation of an Obligated Party), duly executed by the respective Loan Parties, to the extent any such Liens may be perfected under the UCC or PPSA and (B) with respect to any Loan Party located in, or organized under the laws of, Canada and all filings and recordations required by Requirements of Law of Canada (including without limitation under the PPSA and RDPRM), respectively, as the case may be, in all jurisdictions that the Agent may deem necessary or desirable in order to perfect the Agent's Lien in all the Collateral, including without limitation, Accounts and Deposit Accounts of such Loan Party;
(A) duly executed UCC-3 termination statements or assignments with respect to the UCC and such other releases or instruments, in each case in form and substance satisfactory to the Agent, as in each case shall be necessary to terminate and satisfy all Liens, except Permitted Liens, on the property of the Loan Parties, to the extent the Agent's Liens therein may be perfected under the UCC and (B) releases, terminations or other instruments under the Requirements of Law of Canada (including without limitation under the PPSA and other applicable law), and such other releases or instruments, in each case in form and substance satisfactory to the Agent, in each case as shall be necessary to terminate and satisfy all Liens, except Permitted Liens, on all the Collateral, including without limitation, the Accounts and Deposit Accounts of any Loan Party;
(x) as may be required by the Agent in its discretion, notifications of security interests, in patents, trademarks and copyrights under the Security Agreement, as applicable, with respect to any and all Proprietary Rights, if any, owned by any Loan Party which must be registered with any Governmental Authority to perfect the Agent's Liens in such Proprietary Rights, duly executed by each such Consolidated Member, as applicable;
(xi) each Guaranty Agreement (including the Applica Canada Guarantee), duly executed and delivered by each Person required pursuant to Section 7.18;
(A) stock certificates and stock powers (duly executed in blank) for all Capital Stock (to the extent certificated) owned by a Loan Party in any Loan Party, in form and substance satisfactory to the Agent and (B) as may be required by the Agent in its discretion, "control" agreements (pursuant to the UCC), each duly executedAgent, as shall be necessary to terminate all existing UCC filings on the Agent may request with respect to any other Investment Property listed in Schedule 6.27;
(xiii) a Borrowing Base Certificate effective as property of each of the Business Day preceding the day such initial Loans Obligated Parties that are to be funded or any such Letter of Credit or Credit Support is to be issued;
(xiv) as requested by the Agent in its discretionnot Permitted Liens, a landlord's or mortgagee's waiver and consent agreement, in form and substance reasonably acceptable to the Agent, duly executed on behalf of each landlord or mortgagee, as the case may be, of Real Estate on which any Collateral is located provided, that the Agent may, in its discretion, establish, without duplication, a reserve in an amount equal to three (3) months rent with respect to the Collateral located on any Real Estate for which the Agent has not received an acceptable waiver and consent agreement);
(xv) Each Blocked Account Agreement (including each Applica Canada Blocked Account Agreement) duly executed as required by the Security Agreement;
(xvi) the Applica Canada Security Agreement duly executed and delivered by Applica Canada;
(A) the Agent shall have received satisfactory evidence that the Collateral Agent has a valid, exclusive (other than except for Permitted Liens), and perfected first priority security interest, lien, collateral assignment, and pledge (except for Permitted Liens that according to the terms of this Agreement are permitted to have priority over the Agent’s Liens) Lien as of such date the Closing Date in all the Collateral as security for all the Obligations, to the extent any such Liens may be perfected under the UCC (but excluding any Liens on vehicles for which a certificate of title has been issued and Liens perfected solely by possession, but only to the extent neither of the Agent Agents has not requested perfection of its Liens in such vehicles or possession of such Collateral) and (B) with respect to any Loan Party located in, or organized under the laws of Canada, the Agent shall have received satisfactory evidence that the Agent has a valid, exclusive (other than Permitted Liens), and perfected first priority Lien in all personal Property of any such Loan Party, to the extent any such Liens may be perfected under the Requirements of Law of Canada including without limitation under the PPSA and other applicable law respectively, as the case may be, in each case in form and substance satisfactory to each of the Agents; provided that upon either of the Agent; provided further, that upon the Agent's ’s request, the Loan Obligated Parties shall provide any additional agreement, document, instrument, certificate, or other item relating to any other Collateral as may be required for perfection under any Requirement of Law;
(xviiiviii) opinions a Borrowing Base Certificate that calculates the Borrowing Base as of counsel for the Loan Partiesend of the Business Day immediately preceding the Closing Date;
(ix) satisfactory evidence that all filings, each such opinion to be in a formconsents, scopeor approvals with or of the owners of any Capital Stock of any Obligated Party, and substance reasonably satisfactory to any Governmental Authority, or any other third party (including, without limitation, holders of the AgentSecond Lien Debt) have been made or obtained, the Lenders, and their respective counselas applicable; and
(xixx) such other documents agreements, certificates, documents, and instruments as the either Agent or any Lender may reasonably request.
(be) The Agents shall have received signed opinions of counsel for the Obligated Parties, opining as to such matters in connection with the transactions contemplated by this Agreement as either of the Agents may reasonably request, each such opinion to be in form, scope, and substance satisfactory to the Agents, the Lenders, and their respective counsel.
(f) After giving effect to all Borrowings on the making Closing Date and payment of all Loans (including any Loans made to finance payment or reimbursement for fees, costs, fees and expenses then payable due hereunder or due with respect to the other transactions contemplated under or pursuant to this Agreement) and issuance of all Letters of Credit and Credit Support the Transaction Documents, and with all of their the Borrowers’ indebtedness, liabilities, and obligations current, the Loan Parties Unused Availability shall have remaining Availability in an amount not be less than $25,000,000 on the Closing Date40,000,000.
(cg) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as if made correct.
(h) The Borrowers shall have paid (i) all fees and expenses of the Agents and the Attorney Costs incurred in connection with this Agreement and any of the other Loan Documents to be executed in connection with this Agreement and the transactions contemplated thereby to the extent invoiced and (ii) all fees payable to the Lenders on the Closing Date (including, without limitation, the fees payable under Sections 3.6, 3.7 and 3.8 on the Closing Date) (or shall have made provision for the direct payment of all such fees, expenses and Attorney Costs out of the proceeds of any Borrowing to be funded on the Closing Date).
(di) No Default or Event of Default shall exist or would exist after giving effect to the Refinancing, the Loans Borrowings to be made and on the Letters of Credit and Credit Support to be issuedClosing Date.
(ej) Subject to Section 13.7 hereof, the Loan Parties shall have paid all fees and expenses of Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby to the extent invoiced[Intentionally Omitted].
(f) Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement.
(gk) All proceedings taken by the Obligated Parties in connection with the execution of this Agreement, the other Loan Transaction Documents, and all documents and papers relating thereto shall be reasonably satisfactory in form, scope, and substance to the Agent Agents and the Lenders.
(hl) Without limiting the generality of the items described above, each of the Loan Obligated Parties and each other Person guaranteeing or securing payment of any of the Obligations shall have delivered or caused to be delivered to the Agent Agents (in form and substance reasonably satisfactory to each of the AgentAgents), the financial statements, instruments, resolutions, documents, agreements, certificates, opinions opinions, and other items required by either of the AgentAgents and the Lenders.
(m) Since December 31, 2008 there shall not have occurred any event, and no circumstances shall exist, that could reasonably be expected to result in a Material Adverse Effect.
(n) There shall exist no action, suit, investigation, litigation or proceeding pending, or to the knowledge of any of the Obligated Parties, threatened in any court or before any arbitrator or governmental instrumentality that (i) either of the Agents has determined could reasonably be expected to have a Material Adverse Effect or (ii) purports to adversely affect any of the Loan Documents or other Transaction Documents or any of the transactions contemplated thereby in any material respect.
(o) The Agents shall be satisfied that ▇▇▇▇▇ shall receive net cash proceeds of at least $47,000,000 from the issuance of the Term Loans, all of which net cash proceeds shall be applied to repay Revolving Loans. The acceptance by the Borrower Borrowers of any Loans made or Letters of Credit or Credit Support issued on the Closing Date shall be deemed to be a representation and warranty made by each of the Loan Obligated Parties to the effect that all of the conditions precedent to the making of such Loans or issuance of such Letters of Credit or Credit Support have been satisfied, with the same effect as delivery to the Agent Agents and the Lenders of a certificate signed by a Responsible Officer of each of the Loan Obligated Parties, dated the Closing Date, to such effect. Execution and delivery to either of the Agent Agents by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i1) all conditions precedent in this Section 9.1 have been fulfilled to the satisfaction of such Lender, (2) the decision of such Lender to execute and deliver to either of the Agent Agents an executed counterpart of this Agreement was made by such Lender independently and without reliance on either of the Agent Agents or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.19.1, and (ii3) all documents sent to such Lender for approval, consent, or satisfaction were acceptable to such Lender. Execution and delivery to either of the Agents by the Majority Lenders under and as defined in the First Amended and Restated Loan and Security Agreement of counterparts of this Agreement shall be deemed to constitute confirmation by the Non-Executing Revolving Lenders that (1) all conditions precedent in this Section 9.1 have been fulfilled to the satisfaction of the Non-Executing Revolving Lenders and (2) all documents sent to the Non-Executing Revolving Lenders for approval, consent, or satisfaction were acceptable to the Non-Executing Revolving Lenders.
Appears in 1 contract
Conditions Precedent to Making of Loans on the Closing Date. The obligation of the Lenders to make the initial Revolving Loans and the Term Loan on the Closing Date, and the obligation of the Agent to cause the Letter of Credit Issuer to issue any Letter of Credit or Credit Support on the Closing Date, are subject to the following conditions precedent having been satisfied in a manner satisfactory to the Co-Agent and each Lender:
(a) The the Closing Date shall occur on or before June 15, 2004;
(b) the Co-Agent shall have received each (i) the Silver Point Fee Letter, and (ii) the Lender Assignments from the Original Lenders holding not less than 66-2/3% of the following documentsCommitments (as such term is defined under the Original Credit Agreement), all of which shall be satisfactory each in form and substance satisfactory to the Co-Agent, duly executed, and in full force and effect;
(c) the Co-Agent and shall have received a certificate from the Lenders:
Secretary of each Borrower Party (i) certified copies of the certificate of incorporation, certificate of the organizational document of each of the Loan Parties, with all amendments, if any, certified by the appropriate Governmental Authority (provided that upon request by any Loan Party and with the consent of the Agent, any such certified certificate of incorporation, certificate of limited partnership, or comparable organizational document for such Loan Party attesting to the extent not provided on the Closing Date, may be provided within thirty (30) days of the Closing Date, provided that an uncertified copy thereof has been delivered to the Agent together with a written statement by a Responsible Officer confirming that such copy is true, correct, and complete), and the bylaws, regulations, operating agreement, or similar governing document of each Loan Party, in each case certified by the corporate secretary, general partner, or comparable authorized representative resolutions of such Loan Borrower Party, as being true and correct and in effect on the Closing Date;
(ii) certificates 's board of incumbency and specimen signatures with respect to each Person authorized to execute and deliver this Agreement and the other Loan Documents on behalf of each Loan Party and each other Person executing any document, certificate, or instrument to be delivered in connection with this Agreement and the other Loan Documents and, in the case of the Borrower, to request Borrowings and the issuance of Letters of Credit or Credit Support;
(iii) a certificate evidencing the existence of each Loan Party, and certificates evidencing the good standing of each Loan Party in the jurisdiction of directors authorizing its organization and in each other jurisdiction in which it is required to be qualified as a foreign business entity to transact its business as presently conducted, provided that upon request by any Loan Party and with the consent of the Agent, certificates of good standing for any Loan Party from a Governmental Authority other than the jurisdiction of its organization and chief executive office, to the extent not provided on the Closing Date, may be provided within thirty (30) days of the Closing Date;
(iv) this Agreement and the other Loan Documents duly executed and delivered by each Loan Party that is a party thereto;
(v) certified copies of all action taken by each Loan Party to authorize the execution, delivery, and performance of this Agreementall Loan Documents required to be executed and delivered by such Borrower Party on the Closing Date, and authorizing specific officers of such Borrower Party to execute the other same and (ii) certifying the names and true signatures of the officers of such Borrower Party authorized to sign such Loan Documents;
(d) the Co-Agent shall have received copies of each Borrower Party's Governing Documents, and as amended, modified, or supplemented to the Closing Date, certified by the Secretary of each Borrower Party;
(e) the Co-Agent shall have received a certificate of status with respect to the Borrowereach Borrower Party, the Borrowings and the issuance of Letters of Credit and/or Credit Support;
(vi) a certificate of each Loan Party signed by a Responsible Officer:
(A) stating that all of the representations and warranties made or deemed to be made under this Agreement are true and correct as dated within 10 days of the Closing Date, after giving effect to the Loans such certificate to be made at such time and issued by the application appropriate officer of the proceeds thereof and the issuance jurisdiction of any Letter(s) of Credit and/or Credit Support at such time,
(B) stating that no Default or Event of Default exists,
(C) specifying the account organization of the Borrower Party, which certificate shall indicate that such Borrower Party is a Designated Account, and
(D) certifying as to in good standing in such other factual matters as may be reasonably requested by the Agentjurisdiction;
(viif) except to the extent contemplated by Section 8.3(d), the Co-Agent shall have received certificates of status with respect to any Letter each Borrower Party, each dated within 30 days of Credit or Credit Support the Closing Date, such certificates to be issued, all documentation required issued by Section 1.4, duly executed and delivered by each Loan Party, complying with the requirements appropriate officer of the jurisdictions (other than the jurisdiction of organization of such SectionBorrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Effect, which certificates shall indicate that such Borrower Party is in good standing in such jurisdictions;
(Ag) UCC or PPSA financing statements and/or amendments to existing UCC or PPSA financing statements with respect to all Collateral as may be requested by the Co-Agent (and in all events in each state shall have received an opinion of incorporation of an Obligated Party), duly executed by counsel for the respective Loan Parties, to the extent any such Liens may be perfected under the UCC or PPSA and (B) with respect to any Loan Party located in, or organized under the laws of, Canada and all filings and recordations required by Requirements of Law of Canada (including without limitation under the PPSA and RDPRM), respectively, as the case may be, in all jurisdictions that the Agent may deem necessary or desirable in order to perfect the Agent's Lien in all the Collateral, including without limitation, Accounts and Deposit Accounts of such Loan Party;
(A) duly executed UCC-3 termination statements or assignments with respect to the UCC and such other releases or instruments, in each case Borrower Parties in form and substance satisfactory to the Lenders;
(h) the Co-Agent shall have received satisfactory evidence (including a certificate of an officer of each Borrower Party) that all tax returns required to be filed by such Borrower Party have been timely filed and all taxes upon such Borrower Party or its properties, assets, income, and franchises (including Real Estate taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Good-Faith Protest;
(i) the Co-Agent shall have completed its business, financial, collateral, accounting and legal due diligence, the results of which shall be satisfactory to the Co-Agent;
(j) the Co-Agent shall have received copies of all existing Blocked Account Agreements, and shall be satisfied that all such agreements are in full force and effect;
(k) the Co-Agent shall have received final credit approval to make the Loans and other extensions of credit provided for hereunder;
(l) the Lenders shall be satisfied that existing financing statements filed against all Borrower Parties naming Agent, for the benefit of Lenders, as the secured creditor are sufficient to create a first priority security interest in each case all Collateral, except as otherwise permitted herein, and Lenders shall have received searches reflecting the filing of all such financing statements;
(m) the Borrowers shall pay all of the Lenders' expenses incurred in connection with the transactions evidenced by this Agreement;
(n) Each Borrower Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Borrower Party of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and
(o) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be necessary to terminate and satisfy all Liens, except Permitted Liens, on the property of the Loan Parties, to the extent the Agent's Liens therein may be perfected under the UCC and (B) releases, terminations or other instruments under the Requirements of Law of Canada (including without limitation under the PPSA and other applicable law), and such other releases or instruments, in each case in form and substance satisfactory to the Agent, in each case as shall be necessary to terminate and satisfy all Liens, except Permitted Liens, on all the Collateral, including without limitation, the Accounts and Deposit Accounts of any Loan Party;
(x) as may be required by the Agent in its discretion, notifications of security interests, in patents, trademarks and copyrights under the Security Agreement, as applicable, with respect to any and all Proprietary Rights, if any, owned by any Loan Party which must be registered with any Governmental Authority to perfect the Agent's Liens in such Proprietary Rights, duly executed by each such Consolidated Member, as applicable;
(xi) each Guaranty Agreement (including the Applica Canada Guarantee), duly executed and delivered by each Person required pursuant to Section 7.18;
(A) stock certificates and stock powers (duly executed in blank) for all Capital Stock (to the extent certificated) owned by a Loan Party in any Loan Party, in form and substance satisfactory to the Agent and (B) as may be required by the Agent in its discretion, "control" agreements (pursuant to the UCC), each duly executed, as the Agent may request with respect to any other Investment Property listed in Schedule 6.27;
(xiii) a Borrowing Base Certificate effective as of the Business Day preceding the day such initial Loans are to be funded or any such Letter of Credit or Credit Support is to be issued;
(xiv) as requested by the Agent in its discretion, a landlord's or mortgagee's waiver and consent agreement, in form and substance reasonably acceptable to the Agent, duly executed on behalf of each landlord or mortgagee, as the case may be, of Real Estate on which any Collateral is located provided, that the Agent may, in its discretion, establish, without duplication, a reserve in an amount equal to three (3) months rent with respect to the Collateral located on any Real Estate for which the Agent has not received an acceptable waiver and consent agreement);
(xv) Each Blocked Account Agreement (including each Applica Canada Blocked Account Agreement) duly executed as required by the Security Agreement;
(xvi) the Applica Canada Security Agreement duly executed and delivered by Applica Canada;
(A) the Agent shall have received satisfactory evidence that the Agent has a valid, exclusive (other than Permitted Liens), and perfected first priority security interest, lien, collateral assignment, and pledge as of such date in all Collateral as security for all Obligations, to the extent any such Liens may be perfected under the UCC (excluding any Liens on vehicles for which a certificate of title has been issued and Liens perfected solely by possession, but only to the extent the Agent has not requested perfection of its Liens in such vehicles or possession of such Collateral) and (B) with respect to any Loan Party located in, or organized under the laws of Canada, the Agent shall have received satisfactory evidence that the Agent has a valid, exclusive (other than Permitted Liens), and perfected first priority Lien in all personal Property of any such Loan Party, to the extent any such Liens may be perfected under the Requirements of Law of Canada including without limitation under the PPSA and other applicable law respectively, as the case may be, in each case in form and substance satisfactory to the Agent; provided further, that upon the Agent's request, the Loan Parties shall provide any additional agreement, document, instrument, certificate, or other item relating to any Collateral as may be required for perfection under any Requirement of Law;
(xviii) opinions of counsel for the Loan Parties, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel; and
(xix) such other documents and instruments as the Agent or any Lender may reasonably request.
(b) After giving effect to the making of all Loans (including any Loans made to finance payment or reimbursement for fees, costs, and expenses then payable under or pursuant to this Agreement) and issuance of all Letters of Credit and Credit Support and with all of their obligations current, the Loan Parties shall have remaining Availability in an amount not less than $25,000,000 on the Closing Date.
(c) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as if made on the Closing Date.
(d) No Event of Default shall exist or would exist after giving effect to the Refinancing, the Loans to be made and the Letters of Credit and Credit Support to be issued.
(e) Subject to Section 13.7 hereof, the Loan Parties shall have paid all fees and expenses of Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby to the extent invoiced.
(f) Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement.
(g) All proceedings taken in connection with the execution of this Agreement, the other Loan Documents, and all documents and papers relating thereto shall be reasonably satisfactory in form, scope, and substance to the Agent and the Lenders.
(h) Without limiting the generality of the items described above, the Loan Parties and each Person guaranteeing or securing payment of the Obligations shall have delivered or caused to be delivered to the Agent (in form and substance reasonably satisfactory to the Agent), the financial statements, instruments, resolutions, documents, agreements, certificates, opinions and other items required by the Co-Agent. The acceptance by the Borrower Borrowers of any Loans made or Letters of Credit or Credit Support issued on the Closing Date shall be deemed to be a representation and warranty made by the Loan Borrower Parties to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit or Credit Support have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Loan PartiesAdministrative Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 8.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 8.1, and (iiiii) all documents sent to such Lender for approval, consent, or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Credit Agreement (Salton Inc)
Conditions Precedent to Making of Loans on the Closing Date. The obligation of the Lenders to make the initial Loans on the Closing Date, and the obligation of the Agent to cause the Letter of Credit Issuer to issue any Letter of Credit or Credit Support on the Closing Date, are subject to the following conditions precedent having been satisfied in a manner satisfactory to the Agent and each Lender, to the extent not previously satisfied in connection with the Original Credit Agreement:
(a) The Agent shall have received each of the following documents, all of which shall be satisfactory in form and substance to the Agent and the Lenders:
(i) certified copies of the certificate of incorporation, certificate of the organizational document of each of the Loan Parties, with all amendments, if any, certified by the appropriate Governmental Authority (provided PROVIDED that upon request by any Loan Party and with the consent of the Agent, any such certified certificate of incorporation, certificate of limited partnership, or comparable organizational document for such Loan Party to the extent not provided on the Closing Date, may be provided within thirty (30) days of the Closing Date, provided PROVIDED that an uncertified copy thereof has been delivered to the Agent together with a written statement by a Responsible Officer confirming that such copy is true, correct, and complete), and the bylaws, regulations, operating agreement, or similar governing document of each Loan Party, in each case certified by the corporate secretary, general partner, or comparable authorized representative of such Loan Party, as being true and correct and in effect on the Closing Date;
(ii) certificates of incumbency and specimen signatures with respect to each Person authorized to execute and deliver this Agreement and the other Loan Documents on behalf of each Loan Party and each other Person executing any document, certificate, or instrument to be delivered in connection with this Agreement and the other Loan Documents and, in the case of the Borrower, to request Borrowings and the issuance of Letters of Credit or Credit Support;
(iii) a certificate evidencing the existence of each Loan Party, and certificates evidencing the good standing of each Loan Party in the jurisdiction of its organization and in each other jurisdiction in which it is required to be qualified as a foreign business entity to transact its business as presently conducted, provided PROVIDED that upon request by any Loan Party and with the consent of the Agent, certificates of good standing for any Loan Party from a Governmental Authority other than the jurisdiction of its organization and chief executive office, to the extent not provided on the Closing Date, may be provided within thirty (30) days of the Closing Date;
(iv) this Agreement and the other Loan Documents duly executed and delivered by each Loan Party that is a party thereto;
(v) certified copies of all action taken by each Loan Party to authorize the execution, delivery, and performance of this Agreement, the other Loan Documents, and with respect to the Borrower, the Borrowings and the issuance of Letters of Credit and/or Credit Support;
(vi) a certificate of each Loan Party signed by a Responsible Officer:
(A) stating that all of the representations and warranties made or deemed to be made under this Agreement are true and correct as of the Closing Date, after giving effect to the Loans to be made at such time and the application of the proceeds thereof and the issuance of any Letter(s) of Credit and/or Credit Support at such time,
(B) stating that no Default or Event of Default exists,
(C) specifying the account of the Borrower which is a Designated Account, and
(D) certifying as to such other factual matters as may be reasonably requested by the Agent;
(vii) with respect to any Letter of Credit or Credit Support to be issued, all documentation required by Section SECTION 1.4, duly executed and delivered by each Loan Party, complying with the requirements of such Section;
(A) UCC or PPSA financing statements and/or amendments to existing UCC or PPSA financing statements with respect to all Collateral as may be requested by the Agent (and in all events in each state of incorporation of an Obligated Party), duly executed by the respective Loan Parties, to the extent any such Liens may be perfected under the UCC or PPSA and (B) with respect to any Loan Party located in, or organized under the laws of, Canada and all filings and recordations required by Requirements of Law of Canada (including without limitation under the PPSA and RDPRM), respectively, as the case may be, in all jurisdictions that the Agent may deem necessary or desirable in order to perfect the Agent's Lien in all the Collateral, including without limitation, Accounts and Deposit Accounts of such Loan Party;
(A) duly executed UCC-3 termination statements or assignments with respect to the UCC and such other releases or instruments, in each case in form and substance satisfactory to the Agent, as in each case shall be necessary to terminate and satisfy all Liens, except Permitted Liens, on the property of the Loan Parties, to the extent the Agent's Liens therein may be perfected under the UCC and (B) releases, terminations or other instruments under the Requirements of Law of Canada (including without limitation under the PPSA and other applicable law), and such other releases or instruments, in each case in form and substance satisfactory to the Agent, in each case as shall be necessary to terminate and satisfy all Liens, except Permitted Liens, on all the Collateral, including without limitation, the Accounts and Deposit Accounts of any Loan Party;
(x) as may be required by the Agent in its discretion, notifications of security interests, in patents, trademarks and copyrights under the Security Agreement, as applicable, with respect to any and all Proprietary Rights, if any, owned by any Loan Party which must be registered with any Governmental Authority to perfect the Agent's Liens in such Proprietary Rights, duly executed by each such Consolidated Member, as applicable;
(xi) each Guaranty Agreement (including the Applica Canada Guarantee), duly executed and delivered by each Person required pursuant to Section SECTION 7.18;
(A) stock certificates and stock powers (duly executed in blank) for all Capital Stock (to the extent certificated) owned by a Loan Party in any Loan Party, in form and substance satisfactory to the Agent and (B) as may be required by the Agent in its discretion, "control" agreements (pursuant to the UCC), each duly executed, as the Agent may request with respect to any other Investment Property listed in Schedule SCHEDULE 6.27;
(xiii) a Borrowing Base Certificate effective as of the Business Day preceding the day such initial Loans are to be funded or any such Letter of Credit or Credit Support is to be issued;
(xiv) as requested by the Agent in its discretion, a landlord's or mortgagee's waiver and consent agreement, in form and substance reasonably acceptable to the Agent, duly executed on behalf of each landlord or mortgagee, as the case may be, of Real Estate on which any Collateral is located providedPROVIDED, that the Agent may, in its discretion, establish, without duplication, a reserve in an amount equal to three (3) months rent with respect to the Collateral located on any Real Estate for which the Agent has not received an acceptable waiver and consent agreement);
(xv) Each Blocked Account Agreement (including each Applica Canada Blocked Account Agreement) duly executed as required by the Security Agreement;
(xvi) the Applica Canada Security Agreement duly executed and delivered by Applica Canada;
(A) the Agent shall have received satisfactory evidence that the Agent has a valid, exclusive (other than Permitted Liens), and perfected first priority security interest, lien, collateral assignment, and pledge as of such date in all Collateral as security for all Obligations, to the extent any such Liens may be perfected under the UCC (excluding any Liens on vehicles for which a certificate of title has been issued and Liens perfected solely by possession, but only to the extent the Agent has not requested perfection of its Liens in such vehicles or possession of such Collateral) and (B) with respect to any Loan Party located in, or organized under the laws of Canada, the Agent shall have received satisfactory evidence that the Agent has a valid, exclusive (other than Permitted Liens), and perfected first priority Lien in all personal Property of any such Loan Party, to the extent any such Liens may be perfected under the Requirements of Law of Canada including without limitation under the PPSA and other applicable law respectively, as the case may be, in each case in form and substance satisfactory to the Agent; provided furtherPROVIDED FURTHER, that upon the Agent's request, the Loan Parties shall provide any additional agreement, document, instrument, certificate, or other item relating to any Collateral as may be required for perfection under any Requirement of Law;
(xviii) opinions of counsel for the Loan Parties, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel; and
(xix) such other documents and instruments as the Agent or any Lender may reasonably request.
(b) After giving effect to the making of all Loans (including any Loans made to finance payment or reimbursement for fees, costs, and expenses then payable under or pursuant to this Agreement) and issuance of all Letters of Credit and Credit Support and with all of their obligations current, the Loan Parties shall have remaining Availability in an amount not less than $25,000,000 on the Closing Date.
(c) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as if made on the Closing Date.
(d) No Event of Default shall exist or would exist after giving effect to the Refinancing, the Loans to be made and the Letters of Credit and Credit Support to be issued.
(e) Subject to Section 13.7 hereof, the Loan Parties shall have paid all fees and expenses of Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby to the extent invoiced.
(f) Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by this Agreement.
(g) All proceedings taken in connection with the execution of this Agreement, the other Loan Documents, and all documents and papers relating thereto shall be reasonably satisfactory in form, scope, and substance to the Agent and the Lenders.
(h) Without limiting the generality of the items described above, the Loan Parties and each Person guaranteeing or securing payment of the Obligations shall have delivered or caused to be delivered to the Agent (in form and substance reasonably satisfactory to the Agent), the financial statements, instruments, resolutions, documents, agreements, certificates, opinions and other items required by the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit or Credit Support issued on the Closing Date shall be deemed to be a representation and warranty made by the Loan Parties to the effect that all of the conditions precedent to the making of such Loans or issuance of such Letters of Credit or Credit Support have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Loan Parties, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section SECTION 8.1, and (ii) all documents sent to such Lender for approval, consent, or satisfaction were acceptable to such Lender.
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Sources: Credit Agreement (Applica Inc)