Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of credit provided for hereunder is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent): (a) Agent shall have received a Filing Authorization Letter, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral; (b) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect: (i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lender, (ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals, (iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower), (iv) the Disbursement Letter for the initial Advance, (v) the Fee Letters, (vi) the Parent Guaranty, (vii) the Perfection Certificate, (viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and (ix) the Loan Pricing Agreement. (c) Agent shall have received a certificate from an Authorized Person of each Loan Party (i) attesting to the resolutions of such Person’s Board of Directors authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person is a party, (ii) authorizing specific officers of such Person to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person; (d) Agent shall have received copies of the Governing Documents of each Loan Party, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Person; (e) Agent shall have received a certificate of status with respect to each Loan Party, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate that such Person is in good standing in such jurisdiction; (f) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction (other than such Person’s jurisdiction of organization) in which Borrower’s failure to be duly qualified or licensed would cause a Material Adverse Effect, which certificates shall indicate that Borrower is in good standing in such other jurisdiction; (g) [INTENTIONALLY OMITTED] (h) Agent shall have received an opinion of counsel to each Loan Party, in form and substance satisfactory to Agent; (i) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate; (j) Agent shall have received satisfactory evidence (including a certificate of an Authorized Person) that all tax returns required to be filed by each Loan Party have been timely filed and all taxes upon any Loan Party, or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (k) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agent; (l) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretion; (m) Agent shall have received the Closing Date Business Plan; (n) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable; (o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business; (p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens; (q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000; (r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder).
Appears in 1 contract
Sources: Loan and Security Agreement (NewStar Financial, Inc.)
Conditions Precedent to the Initial Extension of Credit. The obligation of each the Lender Group (or any member thereof) to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each LenderAgent, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) the Restatement Closing Date shall occur on or before August 11, 2003;
(b) Agent shall have received a Filing Authorization Letter, duly executed by Borrower all UCC searches and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and required by Agent with respect to the CollateralJanesville-Madison Station, and the results of such searches shall be satisfactory to Agent;
(bc) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as Collateral Assignment of the Closing Date and a Transferee Letter Key Lease with respect to the Janesville-Madison Station, together with an appropriate consent to hypothecation from each the lessor under such LenderKey Lease (to the extent any such consent is required thereby),
(ii) Collateral Assignment of the Closing Certificate, certifying as Tower Lease with respect to the accuracy and completenessJanesville-Madison Station, as of together with an appropriate consent to hypothecation from the Closing Date, of lessor under such Tower Lease (A) to the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsextent any such consent is required thereby),
(iii) the Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Janesville-Madison Station,
(iv) the Disbursement Equipment Financing Letter for the initial AdvanceAgreement,
(v) the Fee LettersLetter,
(vi) the Parent GuarantyGuarantor Security Agreement,
(vii) the Perfection CertificateGuaranty,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, andIntercompany Subordination Agreement,
(ix) modifications of the Mortgages, the Collateral Assignments of Key Leases, and the Collateral Assignments of Tower Leases, in form and substance satisfactory to Agent, reflecting the amendment and restatement of the Existing Loan Pricing Agreement.Agreement and the increase in the Maximum Revolver Amount, and confirmation of recordation in all applicable jurisdictions of such modifications,
(cx) the Pledge Agreement, together with all certificates representing the certificated shares of Stock pledged thereunder that were not delivered on the Closing Date, as well as Stock powers with respect to such certificated shares endorsed in blank;
(d) Agent shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Restatement Closing Date, certified by an Authorized Personthe Secretary of Borrower or a certificate from the Secretary of Borrower certifying that there have been no amendments or other modifications to Borrower's Governing Documents since the Closing Date;
(ef) Agent shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Restatement Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Restatement Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(h) Agent shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Restatement Closing Date, certified by the Secretary of such Guarantor or a certificate from the Secretary of such Guarantor certifying that there have been no amendments or other modifications to such Borrower's Governing Documents since the Closing Date;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Restatement Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Restatement Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdiction;
(l) Agent shall have received (i) an opinion of Obligors' counsel substantially in the form of the opinion delivered on the Closing Date and otherwise in form and substance satisfactory to each Loan PartyAgent and (ii) an opinion of Obligors' special communications counsel with respect to the Janesville-Madison Station, substantially in the form of the opinion delivered on the Closing Date and otherwise in form and substance satisfactory to Agent;
(i) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(jm) Agent shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Borrower) that all tax returns required to be filed by each Loan Party Borrower and its Subsidiaries have been timely filed and all taxes upon any Loan PartyBorrower, its Subsidiaries, or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(kn) Agent Borrower shall have completed its businessthe Required Availability after giving effect to the initial extensions of credit, legalif any, and collateral due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agenthereunder;
(lo) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretion;
(m) Agent shall have received the Borrower's Restatement Closing Date Business Plan;
(np) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(oq) Other than Agent shall have received copies of each LMA, Key Lease, Tower Lease, and Affiliation Agreement with respect to qualifications the Janesville-Madison Station, together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and complete copy thereof;
(r) Agent shall have received a title insurance date down 1B endorsement on existing title insurance policies for the Real Property Collateral issued by Chicago Title or another title insurance company satisfactory to conduct business Agent reflecting the amendment and restatement of the Existing Loan Agreement and the increase in jurisdictions the Maximum Revolver Amount; and
(other than such Person’s jurisdiction of organizations) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Borrower 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 Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(s) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)thereby.
Appears in 1 contract
Sources: Loan and Security Agreement (Acme Communications Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation effectiveness of each Lender to make the initial extensions of credit provided for hereunder this Agreement is subject to the fulfillment, to the satisfaction of Agent and each LenderAgent, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before July 15, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2005;
(b) Agent shall have confirmed, through UCC searches, that its lien remains a duly perfected, senior lien on the Collateral securing all of the Borrowers' Obligations hereunder through UCC searches and patent, copyright and trademark searches;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date this Agreement and a Transferee Letter from each such Lender,all exhibits and schedules hereto;
(ii) the Closing CertificateJuly, certifying as 2005 Amendment to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,Guarantor Security Agreement;
(iii) Control Agreements with respect to all Deposit Accounts the Amended and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower),Restated General Continuing Guaranty;
(iv) the Disbursement Letter for the initial Advance,July, 2005 Amendment of Stock Pledge Agreement;
(v) the Fee Letters,July, 2005 Amendment to Copyright Security Agreement;
(vi) the Parent Guaranty,July, 2005 Amendment to Trademark Security Agreement;
(vii) the Perfection Certificate,July, 2005 Amendment to Intercompany Subordination Agreement;
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Loan Pricing AgreementOfficers' Closing Certificate.
(cd) Agent shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower and Parent attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower or Parent is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent shall have received copies of the each Borrower's and Parent's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of such Borrower or Parent;
(ef) Agent shall have received a certificate of status with respect to each Loan PartyBorrower and Parent, each dated within 10 30 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower or Parent, which certificate shall indicate that such Person Borrower or Parent is in good standing in such jurisdiction;
(fg) Agent shall have received certificates of status with respect to Borrowereach Borrower or Parent, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of such Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that such Borrower is in good standing in such other jurisdictionjurisdictions;
(gh) [INTENTIONALLY OMITTED]Borrower shall have fully executed and delivered to Agent, an opening Borrowing Base Certificate, Closing Statement and Disbursement Letter and an Officers' Closing Certificate.
(hi) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Agent;
(j) Agent shall have received an opinion of Borrowers' in-house counsel to each Loan Party, in form and substance satisfactory to Agent;
(i) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(jk) Agent shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of each Borrower) that all tax returns required to be filed by each Loan Party Borrower have been timely filed and all taxes upon any Loan Party, each Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, real property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(kl) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(m) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each of Borrower’s, Servicer’s, Borrowers' books and Borrower’s Subsidiaries’ Books, a review of Servicer’s records and Borrower’s collateral valuation methods, verification of each of Loan Party’s Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and audit (ii) an inspection of each of Borrower’s and Servicer’s systems and controlsthe locations where Inventory is located, the results of which shall be satisfactory to Agent;
(ln) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(mo) Agent shall have received the Borrowers' Closing Date Business Plan;; which condition Agent confirms has been satisfied
(np) Borrower Borrowers shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement Agreement;
(q) Agent shall have received current copies of (i) the intellectual property license agreement between Parent and Big Dog, together with a certificate of the Secretary of Parent, certifying each such document as being a true, correct, and complete copy thereof, which shall be satisfactory to Agent in its Permitted Discretion;
(r) Agent shall have received evidence satisfactory to Agent in its Permitted Discretion that all fees payable copyrights required to be registered with the United States Copyright Office in order to register the Required Library have been registered in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payableSection 6.16;
(os) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Borrowers 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 Person Borrowers of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its businessthereby;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(st) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent; and
(u) Agent (shall have received that certain side letter between and among Parent, each Borrower, and the approval Lender Group regarding certain Events of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Default.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the its initial extensions extension of credit provided for hereunder hereunder, is subject to the prior fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent Lender (the making of such initial extensions extension of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the following), of each of the following conditions precedent)::
(a) Agent the Restatement Effective Date shall have received a Filing Authorization Letteroccur on or before April 17, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2020;
(b) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as Notice of the Closing Date and a Transferee Letter from each such LenderBorrowing,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsDisbursement Letter,
(iii) Control Agreements with respect to promissory notes evidencing all Deposit Accounts Commitments and Securities Accounts maintained byLoans of the Lenders, or for as of the benefit of, Borrower (or Servicer, for the account of Borrower),Restatement Effective Date;
(iv) the Disbursement Letter for the initial AdvanceMaster Reaffirmation Agreement,
(v) the Fee Letters,Trademark Security Agreement; and
(vi) with respect to all Real Property Collateral owned by Borrower, or any Subsidiary thereof, on the Parent Guaranty,Restatement Effective Date:
(viiA) a modification to the existing Mortgage, in recordable form;
(B) the Perfection Certificate,commitment of the title company to issue an endorsement to the existing title policy ensuring the continued priority of the existing Mortgage;
(viiiC) releases evidence as to whether any such Real Property Collateral is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area” (or a similar designation) and, if it is, evidence that Borrower or such Subsidiary has obtained, with insurance companies as are reasonably - 67 - satisfactory to Agent, such flood insurance in such reasonable total amount as the Agent may reasonably require, and terminations of otherwise sufficient to comply with all security interestsapplicable rules and regulations relating to flood insurance, liens in form and encumbrances on substance reasonably acceptable to the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, Agent; and
(ixD) a legal opinion with respect to the Loan Pricing Agreement.existing Mortgage and the documents referred to in Section 3.1(b)(vi) above, delivered by Borrower’s or such Subsidiary’s counsel in the State in which the Real Property Collateral is located, including, without limitation, Pennsylvania;
(c) Agent shall have received a certificate from an Authorized Person the Secretary of Borrower and each other Loan Party (i) attesting to the resolutions of such Person’s Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person is a party, (ii) authorizing specific officers of such Person to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(d) Agent shall have received copies of the Governing Documents of Borrower’s, each other Loan Party’s and each of their respective Subsidiaries’ Governing Documents, as amended, modified, or supplemented to the Closing Restatement Effective Date, certified by an Authorized the Secretary of such Person;
(e) Agent shall have received a certificate of status with respect to Borrower, each other Loan PartyParty and each of their respective Subsidiaries, each dated within 10 days of the Closing Restatement Effective Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate that the such Person is in good standing in such jurisdiction;
(f) Agent shall have received certificates of status with respect to Borrower, each other Loan Party and each of their respective Subsidiaries, each dated within 30 days of the Closing Restatement Effective Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than the jurisdiction of organization of such Person’s jurisdiction of organization) in which Borrowersuch Person’s failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower such Person is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]subject to Section 3.2(b), Agent shall have received certificates of insurance and endorsements as are required by Section 6.8, the form and substance of which shall be reasonably satisfactory to Agent;
(h) Agent shall have received an opinion of Borrower’s counsel to each Loan Party, in form and substance reasonably satisfactory to Agent;
(i) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Borrower) that all tax returns required to be filed by each Loan Party Borrower and its Subsidiaries have been timely filed and all taxes upon any Loan Party, Borrower and its Subsidiaries or their respective properties, assets, income, and franchises (including (a) Real Property taxes, taxes and sales taxes, which could, individually or in the aggregate, reasonably be expected to result in a liability to Borrower or any of its Subsidiaries in excess of $10,000, and (b) payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agent;
(l) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretion;
(m) Agent shall have received the Closing Date Business Plan;
(nj) Borrower shall have paid (a) all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and invoiced at least 2 Business Days prior to the Restatement Effective Date and (b) all fees due and payable in accordance with on the Restatement Effective Date pursuant to the Fee Letters and this Agreement, in each case, to the extent then due and payableLetter;
(ok) Other than with respect Agent shall have received a certificate from the Chief Financial Officer of the Borrower to qualifications the effect that the Loan Parties on a consolidated basis are Solvent, immediately after giving effect to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure this Agreement and the transactions to be duly qualified consummated on the Restatement Effective Date;
(l) Agent shall have received a Beneficial Ownership Certification in relation to any Loan Party, or licensed would not cause a Material Adverse EffectSubsidiary thereof, requested by the Agent or any Lender at least 2 Business Days prior to the Restatement Effective Date; and
(m) Borrower and each of Borrower, Borrower’s its Subsidiaries and Servicer 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 Person Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(s) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)thereby.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make an Advance on the initial extensions occasion of credit provided for the Initial Extension of Credit hereunder is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (before or concurrently with the making Initial Extension of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):Credit:
(a) The Acquisition shall have been consummated in accordance with the terms of the Stock Purchase Agreement without any waiver or amendment thereto (unless such amendment or waiver in the reasonable judgment of the Administrative Agent is not adverse in any material respect to the interests of the Lender Parties), and in compliance with all applicable laws.
(b) The U.S. Borrower (i) shall have received not less than $108,000,000 in cash for the purchase of common equity by the Investor Group, representing approximately 90% of the outstanding common equity, and (ii) shall have received approximately $200,000,000 in gross cash proceeds from the sale of the Subordinated Notes.
(c) The Administrative Agent shall be reasonably satisfied with the corporate and legal structure and capitalization of each Loan Party, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and of each agreement or instrument relating to such structure or capitalization.
(d) The Administrative Agent shall be reasonably satisfied that all Existing Debt, other than the Debt identified on Schedule 3.01(d) (the "SURVIVING DEBT"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all such Surviving Debt shall be on terms and conditions reasonably satisfactory to the Administrative Agent.
(e) Before giving effect to the Acquisition and the other transactions contemplated by this Agreement, there shall have occurred no material adverse change in the business, financial condition, operations, assets, liabilities or prospects of any Loan Party or any of its Subsidiaries since June 30, 1997.
(f) There shall have occurred no material adverse change in loan syndication, financial or capital market conditions generally that has impaired or could reasonably be expected to impair syndication of the Facilities.
(g) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of the Acquisition, this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby.
(h) Nothing shall have come to the attention of the Lender Parties to lead them to believe (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, (ii) that, following the consummation of the Acquisition, either Borrower or its Subsidiaries would not have good and marketable title to all material assets of such Borrower and such Subsidiaries reflected in the Information Memorandum and (iii) that the Acquisition will have a Material Adverse Effect; without limiting the generality of the foregoing, the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of the Borrowers and their respective Restricted Subsidiaries as they shall have reasonably requested.
(i) All governmental and third party consents and approvals necessary in connection with the Acquisition, the Loan Documents and the Related Documents and the transactions contemplated thereby shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Administrative Agent) and shall remain in effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the reasonable judgment of the Administrative Agent that restrains, prevents or imposes materially adverse conditions upon the Acquisition, the Loan Documents and the Related Documents and the transactions contemplated thereby.
(j) The Administrative Agent shall have received the fees referred to in Section 2.08(c) to be received on the Closing Date and under a Filing Authorization Letterseparate letter agreement dated December 2, 1997 between the U.S. Borrower and the Administrative Agent.
(k) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board of Directors of each Borrower and each other Loan Party approving each Loan Document and Related Document to which it is or is to be a party and the transactions contemplated thereby, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Acquisition, this Agreement, the Notes, each other Loan Document and each Related Document.
(iii) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, or in the case of the Canadian Borrower, the Ministry of Consumer and Commercial Relations of the Province of Ontario, dated reasonably near the date of the Initial Extension of Credit, listing the charter of each Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Borrower's or such other Loan Party's charter on file in his office, (B) each such Borrower and each such other Loan Party have paid all franchise taxes to the date of such certificate and (C) each Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State or Province of the jurisdiction of its incorporation.
(iv) A certificate of each Borrower and each other Loan Party, signed on behalf of such Borrower and such other Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the date of the Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the charter of such Borrower or such other Loan Party since the date of the certificate referred to in Section 3.01(k)(iii), (B) a true and correct copy of the bylaws of such Borrower and such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the absence of any proceeding for the dissolution or liquidation of such Borrower or such other Loan Party, (D) the truth and accuracy of the representations and warranties contained in the Loan Documents in all material respects as though made on and as of the date of the Initial Extension of Credit, (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default, and (F) in the case of the U.S. Borrower only, the completion of the restructuring contemplated by the memorandum attached hereto as Schedule 3.01(l).
(v) A certificate of the Secretary or an Assistant Secretary of each Borrower and each other Loan Party certifying the names and true signatures of the officers of such Borrower and such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder.
(vi) A pledge agreement in substantially the form of Exhibit D hereto (together with each other pledge agreement or Pledge Agreement Supplement delivered pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "PLEDGE AGREEMENT"), duly executed by the U.S. Borrower and Servicerthe Canadian Borrower, together with:
(A) certificates representing 100% of the issued and outstanding stock (or other ownership or profit interest) owned by the U.S. Borrower of all of its first-tier Subsidiaries (other than Unrestricted Subsidiaries), accompanied by undated stock powers executed in blank; PROVIDED that no more than 66% of the issued and outstanding stock of any first-tier Foreign Subsidiaries of the U.S. Borrower (other than Unrestricted Subsidiaries and the Canadian Borrower) shall be required to be pledged,
(B) copies of proper financing statements, to be duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Pledge Agreement, covering the Collateral described in the Pledge Agreement,
(C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all other effective financing statements filed in the jurisdictions referred to in clause (B) above that name the U.S. Borrower or any other Loan Party as debtor, together with appropriate copies of such other financing statements duly filed statements,
(D) evidence of the completion of all other recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may reasonably deem necessary or desirable in such office order to perfect and protect the Liens created thereby, and
(E) evidence that all other action that the Administrative Agent may reasonably deem necessary or offices desirable in order to perfect and protect the first priority liens and security interests created under the Pledge Agreement has been taken.
(vii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty required to be delivered as may be necessary orof the Closing Date pursuant to Section 5.01(k), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the opinion of Agent"SUBSIDIARIES GUARANTY"), desirable to perfect the Trustee’s Liens in and to the Collateral;
(b) Agent shall have received duly executed by each of the following documentsSubsidiary Guarantors.
(viii) Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to Agentthe Lender Parties, duly executedtogether with all agreements, instruments and each such document shall be other documents delivered in full force and effect:connection therewith.
(iix) Such financial, business and other information regarding each Loan Party as the Lender Parties shall have reasonably requested, including, without limitation, (A) audited Consolidated financial statements of the U.S. Borrower and its Consolidated Subsidiaries for Fiscal Years 1995 and 1996, (B) unaudited Consolidated financial statements of the U.S. Borrower and its consolidated Subsidiaries for each Fiscal Quarter in Fiscal Year 1997 that ended more than 45 days prior to the initial Closing Date, (C) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment Consolidated pro forma balance sheet of the U.S. Borrower and its Consolidated Subsidiaries as of the Closing Date and a Transferee Letter from each such Lender,
(ii) the Closing Certificate, certifying as after giving effect to the accuracy Acquisition and completeness, as of other transactions and financings contemplated by the Closing Date, of (A) Related Documents and the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business PlanLoan Documents, and (D) Borrower’s licenses Consolidated forecasted financial statements of the U.S. Borrower and approvals,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or its Consolidated Subsidiaries for the benefit of, Borrower (or Servicer, for the account of Borrower),
(iv) the Disbursement Letter for the initial Advance,
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Loan Pricing Agreement.
(c) Agent shall have received a certificate from an Authorized Person of each Loan Party (i) attesting to the resolutions of such Person’s Board of Directors authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person is a party, (ii) authorizing specific officers of such Person to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(d) Agent shall have received copies of the Governing Documents of each Loan Party, as amended, modified, or supplemented to five-year period after the Closing Date, certified by an Authorized Person;
(e) Agent shall have received a certificate of status with respect to each Loan Party, each dated within 10 days all of the Closing Dateforegoing (including, such certificate without limitation, the statements to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate that such Person is in good standing in such jurisdiction;
delivered pursuant to clauses (fA) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates through (D) above) to be issued by the appropriate officer of each jurisdiction (other than such Person’s jurisdiction of organization) in which Borrower’s failure to be duly qualified or licensed would cause a Material Adverse Effect, which certificates shall indicate that Borrower is in good standing in such other jurisdiction;
(g) [INTENTIONALLY OMITTED]
(h) Agent shall have received an opinion of counsel to each Loan Party, in form and substance reasonably satisfactory to the Administrative Agent;.
(ix) Agent shall have received Letters and certificates, in substantially the Approved Forms form of Exhibit H and Required ProceduresI hereto, all in form and substance satisfactory to Agentrespectively, which shall also be attached as exhibits attesting to the Closing Certificate;
(j) Agent shall have received satisfactory evidence (including a certificate of an Authorized Person) that all tax returns required to be filed by each Loan Party have been timely filed and all taxes upon any Loan Party, or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review Solvency of each of the Borrowers after giving effect to the Acquisition and the other transactions contemplated hereby, from its chief financial officer or, in the case of the Canadian Borrower’s, Servicer’sits assistant treasurer, and Borrower’s Subsidiaries’ Booksa nationally recognized appraisal firm, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be consultant or investment banking firm satisfactory to the Administrative Agent;.
(lxi) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each A favorable opinion of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇and ▇▇▇▇▇▇▇, U.S. counsel for the Borrowers, in substantially the form of Exhibit F-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xii) A favorable opinion of Osler, ▇▇▇▇▇▇ ▇▇▇▇▇)& Harcourt, Canadian counsel for the results Canadian Borrower, in substantially the form of which are satisfactory Exhibit F-2 and as to such other matters as any Lender Party through the Administrative Agent in its sole discretion;may reasonably request.
(mxiii) Agent shall have received the Closing Date Business Plan;
(n) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this AgreementA favorable opinion of Shearman & Sterling, in each case, to the extent then due and payable;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person of the Loan Documents or with the consummation of the transactions contemplated thereby or counsel for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidenceAdministrative Agent, in form and substance satisfactory to the Administrative Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(s) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder).
Appears in 1 contract
Sources: Credit Agreement (Accuride Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder other than the funding of the Term Loan), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Domestic Revolver Closing Date shall have received a Filing Authorization Letteroccur on or before September 16, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2002;
(b) Agent Lender shall have filed all financing statements required by Lender, duly authorized by Borrower, and Lender shall have received searches reflecting the filing of all such financing statements;
(c) Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderControl Agreements,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsCopyright Security Agreement,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Disbursement Letter,
(iv) the Disbursement Letter for the initial AdvanceFee Letter,
(v) the Fee LettersGuarantor Security Agreement,
(vi) the Parent Guaranty,
(vii) the Perfection CertificateIntercompany Subordination Agreement,
(viii) releases and terminations of all security interests, liens and encumbrances the Junior Notes Subordination Agreement (unless the Junior Notes are paid in full on the Collateral (other than Permitted LiensDomestic Revolver Closing Date or the amount for such payment has been provided for pursuant to Section 7.17(b), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and),
(ix) the Loan Pricing Agreement.Mortgage,
(cx) Agent the Officers' Certificate,
(xi) the Patent Security Agreement,
(xii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries,
(xiii) the Pledge Agreement, together with certificates representing 100% of the shares of Stock of certain of Borrower's Subsidiaries, as well as Stock powers with respect thereto endorsed in blank, and
(xiv) the Trademark Security Agreement;
(d) Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent Lender shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Domestic Revolver Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ef) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 20 days of the Domestic Revolver Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent Lender shall have received certificates of status with respect to Borrower, each dated within 30 days of the Domestic Revolver Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictions; -44-
(h) Lender shall have received a certificate from the Secretary of the Guarantors attesting to the resolutions of the Guarantors' Boards of Directors authorizing their execution, delivery, and performance of the Loan Documents to which the Guarantors are parties and authorizing specific officers of the Guarantors to execute the same;
(i) Lender shall have received copies of the Guarantors' Governing Documents, as amended, modified, or supplemented to the Domestic Revolver Closing Date, certified by the Secretary of the Guarantors;
(j) Lender shall have received certificates of status with respect to each Guarantor, dated within 20 days of the Domestic Revolver Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of each such Guarantor, which certificate shall indicate that such Obligor is in good standing in such jurisdiction;
(gk) [INTENTIONALLY OMITTED]Lender shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Domestic Revolver Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that each such Guarantor is in good standing in such jurisdictions;
(hl) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender;
(m) Lender shall have received a Collateral Access Agreement with respect to Borrower's Orlando Florida location;
(n) Lender shall have received an opinion of Borrower's and Guarantors' counsel to each Loan Party, in form and substance satisfactory to AgentLender;
(io) Agent Lender shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent shall have received satisfactory evidence (including a certificate of an Authorized Person) the chief financial officer of Borrower stating that all tax returns required to be filed by each Loan Party Borrower have been timely filed and all taxes upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(kp) Agent Borrower shall have completed its business, legal, and collateral due diligence, the Required Availability after giving effect to the initial extensions of credit hereunder including a collateral audit and review the extension of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties credit required to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, pay the results of which shall be satisfactory to AgentJunior Notes in full;
(lq) Agent Borrower shall have filed with the United States Copyright Office the source code of the most recent commercialized versions of its proprietary software programs known as InVision, Intersoft and Omvia, and Lender shall have received completed reference checks (including personal credit reports, tax lien -45- satisfactory evidence that such copyrighted material and litigation histories) with respect to the Loan Parties and each of proceeds thereof are specifically encumbered by the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretionCopyright Security Agreement;
(mr) Agent Lender shall have received the Borrower's Closing Date Business Plan;
(ns) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(ot) Other than Lender shall have received (i) an appraisal of the Real Property Collateral satisfactory to Lender, and (ii) a mortgagee title insurance policy (or a marked commitment to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Lender ("Mortgage Policy") in an amount satisfactory to Lender assuring Lender that the Mortgage on such Real Property Collateral is a valid and enforceable second priority mortgage Lien on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policy otherwise shall be in form and substance satisfactory to Lender;
(u) Lender shall have received a phase-I environmental report and a real estate survey with respect to qualifications each parcel composing the Real Property Collateral; the environmental consultants and surveyors retained for such reports or surveys, the scope of the reports or surveys, and the results thereof shall be acceptable to conduct business in jurisdictions Lender;
(other than such Person’s jurisdiction of organizationv) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Borrower 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 Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent thereby;
(w) Lender shall have received evidencean appraisal of the Recurring Maintenance Revenues, such appraisal shall be conducted by an appraiser acceptable to Lender, and the results of such appraisal shall be satisfactory to Lender;
(x) Lender shall have received a license agreement between IVLP, as licensor, and Borrower, as licensee, with respect to the licensing of intellectual property owned by IVLP to Borrower, and the same shall be in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(sy) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make an Advance on the initial extensions occasion of credit provided for the Initial Extension of Credit hereunder is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each or waiver of the following conditions precedent before or concurrently with the Initial Extension of Credit and this Agreement shall become effective on and as of the date hereof (the making of “Closing Date”) when all such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):shall have been satisfied:
(a) The Administrative Agent shall have received a Filing Authorization Letterthis Agreement, duly executed and delivered by Borrower each Borrower, each Initial Lender, the Initial Issuing Bank, the Existing Issuing Bank, the Swing Line Bank, the Agents and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral;Lead Arrangers.
(b) The following transactions shall have been consummated, in each case on terms and conditions reasonably satisfactory to the Lender Parties:
(i) the Merger shall have been consummated in accordance with the terms of the Merger Agreement and in compliance in all material respects with all applicable Requirements of Law, and no provision of the Merger Agreement shall have been waived, amended, supplemented or otherwise modified (unless such waiver, amendment, supplement or other modification, in the reasonable judgment of the Administrative Agent, is not adverse in any material respect to the interests of the Lender Parties);
(ii) the U.S. Borrower shall have received at least $275,000,000 in gross cash proceeds from the issuance of the Senior Subordinated Notes; and
(iii) the Refinancing shall have been consummated and satisfactory arrangements shall have been made for the termination of all Liens granted in connection with TTI’s first and second lien credit agreements.
(c) The Administrative Agent shall be reasonably satisfied with the corporate and legal structure and capitalization of each Loan Party, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and of each agreement or instrument relating to such structure or capitalization.
(d) The Administrative Agent shall be reasonably satisfied that all Debt of the U.S. Borrower and its Restricted Subsidiaries outstanding immediately before giving effect to the Refinancing, other than the Debt (the “Surviving Debt”) identified on Schedule 3.01(d), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all such Debt on Schedule 3.01(d) shall be on terms and conditions reasonably satisfactory to the Administrative Agent.
(i) The Senior Leverage Ratio, determined on a pro forma basis after giving effect to the Transactions and with such other adjustments as are reasonably satisfactory to the Administrative Agent and the Lead Arrangers, shall not exceed 4.10:1.00 for the twelve-month period ended on November 30, 2004, and the Administrative Agent shall have received each from the U.S. Borrower support for such calculations of a nature that is reasonably satisfactory to the Administrative Agent and the Lead Arrangers.
(ii) The ratio of (A) (1) total Funded Debt of the U.S. Borrower and its Restricted Subsidiaries, minus (2) the amount of cash in excess of $5,000,000 reflected on the U.S. Borrower’s balance sheet on the Closing Date after giving effect to the Transactions, minus (3) the aggregate amount of TTI’s 12.5% senior subordinated notes due 2010 and the U.S. Borrower’s 9.25% senior subordinated notes due 2008 (collectively, the “Old Notes”), in each case for which cash sufficient for the repayment, redemption or repurchase thereof is then on deposit with the applicable trustee, to (B) Consolidated EBITDA of the U.S. Borrower and its Restricted Subsidiaries for the twelve-month period ending on November 30, 2004 shall not exceed 5.35:1.00; provided that Consolidated EBITDA shall be calculated giving effect to the Transactions as though the Transactions had occurred at the beginning of such twelve-month period, and the Administrative Agent shall have received from the U.S. Borrower support for such calculations of a nature that is reasonably satisfactory to the Administrative Agent and the Lead Arrangers.
(f) Before and after giving effect to the Transactions and the other transactions contemplated by this Agreement, there shall have occurred no material adverse change in the business, financial condition, operations, assets, liabilities or prospects of any Loan Party or any of its Subsidiaries since December 31, 2003.
(g) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of the Merger, this Agreement, any Note, any other Loan Documents, any Related Document or the consummation of the transactions contemplated hereby.
(h) Nothing shall have come to the attention of the Lender Parties to lead them to believe (i) that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect or (ii) that, following documentsthe consummation of the Transactions, either Borrower or its Subsidiaries would not have good and marketable title to all material assets of such Borrower and such Subsidiaries reflected in the Information Memorandum; without limiting the generality of the foregoing, the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of the Borrowers and their respective Restricted Subsidiaries as they shall have reasonably requested.
(i) All governmental and third party consents and approvals necessary in connection with the Transactions, the Loan Documents and the Related Documents and the transactions contemplated thereby shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Administrative Agent) and shall remain in effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the reasonable judgment of the Administrative Agent that restrains, prevents or imposes materially adverse conditions upon the Transactions, the Loan Documents and the Related Documents and the transactions contemplated thereby.
(j) The Lenders and the Administrative Agent shall have received all fees required to be paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Closing Date.
(k) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to Agentthe Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board of Directors of each Borrower and each other Loan Party approving each Loan Document to which it is or is to be a party and the transactions contemplated thereby, duly executedand of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transactions, this Agreement, the Notes, each other Loan Document and each Subordinated Debt Document.
(iii) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation or formation, or in the case of the Canadian Borrower, the Ministry of Consumer and Commercial Relations of the Province of Ontario (the “Ontario Ministry”), dated reasonably near the date of the Initial Extension of Credit, listing the charter (or other formation document) of each Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Borrower’s or such other Loan Party’s charter (or other formation document) on file in his office, (B) each such Borrower and each such document other Loan Party have paid all franchise taxes to the date of such certificate and (C) each Borrower and each other Loan Party are duly incorporated or formed and in good standing under the laws of the State or Province of the jurisdiction of its incorporation or formation.
(iv) A certificate of each Borrower and each other Loan Party, signed on behalf of such Borrower and such other Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary (or in the case of Accuride Erie by a duly authorized officer of the sole member of its general partner), dated the date of the Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the charter (or other formation document) of such Borrower or such other Loan Party since the date of the certificate referred to in Section 3.01(k)(iii), (B) a true and correct copy of the bylaws (or other organizational document) of such Borrower and such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the absence of any proceeding for the dissolution or liquidation of such Borrower or such other Loan Party, (D) the truth and accuracy of the representations and warranties contained in the Loan Documents in all material respects as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(v) A certificate of the Secretary or an Assistant Secretary of each Borrower and each other Loan Party certifying the names and true signatures of the officers of such Borrower and such other Loan Party authorized to sign this Agreement, the Notes and each other Loan Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder.
(vi) The Guarantee and Collateral Agreement, duly executed by the U.S. Borrower and each of the U.S. Borrower’s Domestic Subsidiaries, together with:
(A) certificates representing 100% of the issued and outstanding stock (or other ownership or profit interest) owned by the Loan Parties, accompanied by undated stock powers executed in blank; provided that no more than 66% of the issued and outstanding stock of any first-tier Foreign Subsidiaries of the U.S. Borrower and its Domestic Subsidiaries shall be required to be pledged,
(B) copies of proper financing statements or amendments thereto, to be duly filed on or before the day of the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Guarantee and Collateral Agreement, covering the Collateral described therein,
(C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all other effective financing statements filed in the jurisdictions where the Loan Parties are incorporated and where their assets are located that name the U.S. Borrower or any other Loan Party as debtor, together with copies of such other financing statements,
(D) evidence of the completion of recordings and filings, if any, of or with respect to the Guarantee and Collateral Agreement that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the Liens created thereby,
(E) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under any of the Collateral Documents (including, without limitation, any action so deemed necessary or desirable as a result of changes in the names or corporate structure of any of the U.S. Borrower’s subsidiaries) has been taken and remains in full force and effect:, and
(iF) a Revolving Credit Note evidence of the insurance, if any, required by the terms of any of the Collateral Documents.
(vii) A duly executed confirmation and amendment with respect to the Mexican Pledge Agreement (the “Mexican Confirmation and Amendment”) and evidence of the completion of all recordings, filings and other actions necessary under Mexican law to perfect and protect the first priority pledge created by the Mexican Pledge Agreement of 65% of the stock of the Mexican Subsidiary, in the understanding that the Administrative Agent hereby reserves all its rights under the Mexican Pledge Agreement to assure continuance of its full force and effect for the benefit of each of the Secured Parties and, therefore, that such Mexican Pledge Agreement shall continue in full force and effect to secure the Obligations.
(viii) A duly executed confirmation and amendment made by the Canadian Borrower to the Administrative Agent for the benefit of the Secured Parties under the Canadian Security Agreement (the “Canadian Confirmation and Amendment”) and evidence of the completion of all recordings, filings and other actions necessary under Canadian law to perfect and protect the first priority security interest created by the Canadian Borrower under the Canadian Security Agreement.
(ix) Fully executed amendments, supplements, restatements or other modifications (the “Mortgage Amendments”) of the Mortgages covering the properties listed on Schedule 3.01(k)(ix) and marked with an asterisk (the “Existing Mortgaged Properties”) to the extent necessary to continue to secure the Obligations of the Loan Parties under this Agreement or any other Loan Document.
(x) Certified copies of each of the Subordinated Debt Documents and the Merger Agreement, duly executed by the parties thereto, together with all agreements, instruments and documents delivered in connection therewith.
(xi) Such financial, business and other information regarding each Loan Party as the Lender Parties shall have reasonably requested, including, without limitation, (A) audited Consolidated financial statements of each of the U.S. Borrower and its Consolidated Subsidiaries and of TTI and its Consolidated Subsidiaries for Fiscal Year 2003, (B) unaudited Consolidated financial statements of each of the U.S. Borrower and its Consolidated Subsidiaries and of TTI and its Consolidated Subsidiaries for each Lender listing a principal sum equal Fiscal Quarter in Fiscal Year 2004 that ended more than 45 days prior to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lender,
(ii) for the Closing Certificatetwelve-month period ended November 30, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms2004, (C) the Closing Date Business Plan, pro forma financial statements described in Section 4.01(g) and (D) Borrower’s licenses Consolidated forecasted financial statements of the U.S. Borrower and approvals,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or its Consolidated Subsidiaries for the benefit of, Borrower (or Servicer, for the account of Borrower),
(iv) the Disbursement Letter for the initial Advance,
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Loan Pricing Agreement.
(c) Agent shall have received a certificate from an Authorized Person of each Loan Party (i) attesting to the resolutions of such Person’s Board of Directors authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person is a party, (ii) authorizing specific officers of such Person to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(d) Agent shall have received copies of the Governing Documents of each Loan Party, as amended, modified, or supplemented to five-year period after the Closing Date, certified by prepared on a quarterly basis for the first year after the Closing Date and on an Authorized Person;
(e) Agent shall have received a certificate of status with respect to annual basis for each Loan Party, each dated within 10 days year thereafter; all of the Closing Dateforegoing (including, such certificate without limitation, the statements to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate that such Person is in good standing in such jurisdiction;
delivered pursuant to clauses (fA) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates through (D) above) to be issued by the appropriate officer of each jurisdiction (other than such Person’s jurisdiction of organization) in which Borrower’s failure to be duly qualified or licensed would cause a Material Adverse Effect, which certificates shall indicate that Borrower is in good standing in such other jurisdiction;
(g) [INTENTIONALLY OMITTED]
(h) Agent shall have received an opinion of counsel to each Loan Party, in form and substance reasonably satisfactory to Agent;the Administrative Agent (and, in the case of clause (B), to the Lead Arrangers).
(ixii) Agent shall have received Certificates, in substantially the Approved Forms and Required Proceduresform of Exhibit H hereto, all in form and substance satisfactory to Agent, which shall also be attached as exhibits attesting to the Closing Certificate;
(j) Agent shall have received satisfactory evidence (including a certificate of an Authorized Person) that all tax returns required to be filed by each Loan Party have been timely filed and all taxes upon any Loan Party, or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review Solvency of each of the Borrowers after giving effect to the Transactions and the other transactions contemplated hereby, from its chief financial officer or, in the case of the Canadian Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review its assistant treasurer.
(xiii) Evidence that ratings of Servicer’s and Borrower’s collateral valuation methods, verification of the Facilities from each of Loan Party’s representations ▇▇▇▇▇’▇ and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, S&P are in effect on the results of which shall be satisfactory to Agent;Closing Date.
(lxiv) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each A favorable opinion of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ LLP, U.S. counsel for the Borrowers, in substantially the form of Exhibit D hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xv) A favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. , General Counsel of the U.S. Borrower, in substantially the form of Exhibit E hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xvi) A favorable opinion of Osler, ▇▇▇▇▇▇▇ & Harcourt LLP, ▇▇▇▇ ▇▇▇▇Canadian counsel for the Canadian Borrower, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), in substantially the results form of which are satisfactory Exhibit F to Agent in its sole discretion;
(m) Agent shall have received the Closing Date Business Plan;
(n) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, as to the extent then due and payable;
such other matters (o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(s) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder).a
Appears in 1 contract
Sources: Credit Agreement (Accuride Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of each the Lender Group (or any member thereof) to make the initial extensions of Advance (or otherwise to extend any initial credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each LenderAgent, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) the Closing Date shall occur on or before September 30, 2010;
(b) Agent shall have received a Filing Authorization Letter, duly executed by Borrower and Servicer, together with appropriate searches reflecting the filing of all financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateralstatements;
(bc) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderDisbursement Letter,
(ii) the Closing CertificateCollateral Assignment, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,and
(iii) Control Agreements with respect a written authorization from NCB to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower),
(iv) the Disbursement Letter for the initial Advance,
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Loan Pricing Agreementterminate its UCC-1.
(cd) Agent shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such PersonBorrower’s Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent shall have received copies of the Borrower’s Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Person;
(e) Agent shall have received a certificate the Secretary of status with respect to each Loan Party, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate that such Person is in good standing in such jurisdictionBorrower;
(f) Agent shall have received certificates of status with respect to Borrower, each dated within 30 10 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]Agent shall have received a certificate of insurance, evidencing the insurance required by Section 6.9, the form and substance of which shall be satisfactory to Agent;
(h) Agent shall have received an opinion of Borrower’s counsel to each regarding the valid existence and good standing of Borrower and the due authorization and execution of Loan PartyDocuments, in form and substance satisfactory to Agent;
(i) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Borrower) that all tax returns required to be filed by each Loan Party Borrower have been timely filed and all material taxes upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(kj) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each Borrower’s books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and audit (ii) an inspection of each of Borrower’s and Servicer’s systems and controlsthe locations where Inventory is located, the results of which shall be satisfactory to Agent;
(lk) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower’s senior management, the results of which are satisfactory to Agent in its sole discretion;
(m) Agent shall have received the Closing Date Business Plan;
(nl) Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement Agreement;
(m) Agent shall have received copies of each of the operating agreement and investment agreement between Borrower and Parent, together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and complete copy thereof;
(n) Borrower shall have endorsed and delivered to Lender physical possession of all fees payable original Notes Receivables together with allonges thereto and copies of all recorded deeds of trust securing such Notes Receivable together with assignments thereof in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payablerecordable form;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Borrower 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 Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)thereby; and
(sp) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Agent.
Appears in 1 contract
Sources: Loan and Security Agreement (Unified Grocers, Inc.)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Subsidiary Borrower Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before December 31, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2000;
(b) Agent Lender shall have received all financing statements required by Lender, duly executed by Subsidiary Borrower, and Lender shall have received searches reflecting the filing of all such financing statements;
(c) Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lender[intentionally omitted],
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsDisbursement Letter,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Cash Management Agreements,
(iv) the Disbursement Letter for the initial AdvancePayoff Letter,
(v) the Fee LettersUK Debenture, together with all certificates representing the shares of Subsidiary Borrower pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, and other deeds and documents of title required to be deposited thereunder,
(vi) the Parent UK Guaranty,
(vii) the Perfection CertificateUK Stock Pledge Agreement (Parent), together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by LenderCanadian Security Documents, and
(ix) the Loan Pricing Security Agreement.;
(cd) Agent [intentionally omitted];
(e) Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) of Subsidiary Borrower and UK Holding Company attesting to the resolutions of such Person’s the Board of Directors of each of Subsidiary Borrower and UK Holding Company authorizing the their respective execution, delivery, and performance of this Agreement and the other Subsidiary Loan Documents to which such Person each is a party, (ii) party and authorizing specific officers of such Person each to execute the same, and (iii) attesting amending their respective articles of association to disapply any rights of lien, pre-emption rights, or any rights of veto on the incumbency and signatures transfer of any shares which are the subject of any security granted pursuant to any of the Loan Documents or Subsidiary Loan Documents or enforcement of such specific officers security or where the transfer is made at the direction of such PersonLender or a receiver;
(df) Agent Lender shall have received copies of the Subsidiary Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Subsidiary Borrower;
(eg) Agent Lender shall have received a certificate of status with respect to each Loan PartySubsidiary Borrower, each dated within 10 30 days of the Closing Date, such certificate to be issued by the appropriate officer registrar of the jurisdiction of organization of such Personcompanies, which certificate shall indicate that such Person Subsidiary Borrower is in good standing in such jurisdiction;
(fh) Agent Lender shall have received certificates of status with respect to Subsidiary Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Subsidiary Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Subsidiary Borrower is in good standing in such other jurisdictions;
(i) Lender shall have received copies of UK Holding Company's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of UK Holding Company;
(j) Lender shall have received a certificate of status with respect to UK Holding Company, dated within 30 days of the Closing Date, such certificate to be issued by the registrar of companies, which certificate shall indicate that UK Holding Company is in good standing in such jurisdiction;
(gk) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received an opinion certificates of status with respect to UK Holding Company, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of UK Holding Company) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that UK Holding Company is in good standing in such jurisdictions;
(l) Lender shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of each of the Subsidiary Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(m) Lender shall have received a certificate from the Secretary of Parent certifying that there have been no amendments, restatements, supplements, or modifications to the Governing Documents of any of the Borrowers since the "Closing Date" (as defined in the Parent Loan Agreement);
(n) Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender;
(o) Lender shall have received such Collateral Access Agreements with respect to such of Subsidiary Borrower's facilities as Lender may require;
(p) Lender shall have received opinions of Subsidiary Borrower's counsel to each Loan Party(and, in Lender's sole discretion, Lender's foreign counsel) in form and substance satisfactory to AgentLender;
(iq) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Persona director of Subsidiary Borrower) that all tax returns required to be filed by each Loan Party Subsidiary Borrower have been timely filed and all taxes upon any Loan Party, Subsidiary Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(kr) Agent Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each of Subsidiary Borrower’s, Servicer’s, 's books and Borrower’s Subsidiaries’ Books, a review of Servicer’s records and Borrower’s collateral valuation methods, verification of each of Loan Party’s Subsidiary Borrower's representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsLender, the results of which shall be satisfactory to Agent;
Lender, and (lii) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and an inspection of each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)locations where Inventory is located, the results of which are shall be satisfactory to Agent in its sole discretionLender;
(ms) Agent shall have received the Closing Date Business Plan;
(n) Subsidiary Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(ot) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Subsidiary Borrower 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 Person Subsidiary Borrower of the this Agreement or any other Subsidiary Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)thereby; and
(su) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Sources: Loan Agreement (Futurelink Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation ------------------------------------------------------- of each the Lender Group (or any member thereof) to make the initial extensions extension of credit provided for hereunder hereunder, is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent Lender (the making of such initial extensions extension of credit by a Lender being conclusively deemed to be its the satisfaction or waiver of the following), of each of the following of the conditions precedent)::
(a) the Closing Date shall occur on or before a date ninety (90) days from the date of this Agreement, unless extended by Agent at its sole discretion, for an additional period of time not to exceed ninety (90) days;
(b) Agent shall have received a Filing Authorization Letter, duly executed by Borrower and Servicereach Pledging Subsidiary, together with appropriate financing statements duly filed in such office or offices as may be maybe necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Agent's Liens in and to the CollateralCollateral and Agent shall have received searches reflecting the filing of all such financing statements;
(bc) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderContribution Agreement,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsDisbursement Letter,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Fee Letter,
(iv) the Disbursement Letter for the initial AdvanceOfficers' Certificate,
(v) the Fee LettersPartnership Pledge Agreement,
(vi) the Parent GuarantyBorrower's Security Agreement,
(vii) the Perfection CertificateLLC Pledge Agreement,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by LenderIntercompany Notes, and
(ix) the Loan Pricing Agreement.Subordination Agreements, as may be required by Agent;
(cd) Agent shall have received (i) counterparts of duly executed Mortgages encumbering Oil and Gas Properties of the Pledging Subsidiaries constituting at least 80% of the Total Proved Developed Producing Reserves of the Pledging Subsidiaries to which value is given in the determination of the Initial Borrowing Base duly executed on behalf of each record owner of such Oil and Gas Properties and evidence of the completion (or satisfactory arrangements for the completion) of all recordings and filings of such Mortgage(s) as may be necessary or, in the reasonable opinion of the Agent, desirable effectively to create a valid, perfected first priority Lien against the Oil and Gas Properties purported to be covered thereby, except as a result of a Permitted Lien; and (ii) duly executed Partnership Pledge Agreements and LLC Pledge Agreement assigning to Agent, and granting to Agent a first perfected priority security interest in, partnership interests in Partnerships and the membership interests in the LLC having Oil and Gas Properties constituting at least 80% the Total Proved Developed Producing Reserves of the Partnerships to which value is given in the determination of the Initial Borrowing Base and evidence of the completion of all recordings and filings of such create valid, perfected first priority Liens in such partnership interests;
(e) Agent shall have received counterparts of duly executed Mortgages encumbering the Gathering Systems duly executed and delivered by each Subsidiary and/or Affiliate of Borrower owning the Gathering Systems or any part thereof and evidence of the completion (or satisfactory arrangement for the completion) of all recordings and filings of such Mortgage(s) as may be necessary or in the reasonable opinion of the Agent, desirable effectively to create a valid, perfected first priority Lien on the Gathering Systems;
(f) The Borrowing Base Properties, the Gathering Systems, and the other Collateral shall be free and clear of all Liens, except Permitted Liens. All filings, notices, recordings and other action necessary to perfect the Liens in the Collateral shall have been made, given or accomplished or arrangements for the completion thereof satisfactory to the Agent and its counsel shall have been made;
(g) Agent shall have received copies of all Governmental Approvals and third party consents and approvals necessary or, in the sole discretion of the Agent, advisable in connection with (i) the mortgaging and pledging of the Mortgaged Properties, and the other Collateral, (ii) the pledging of the partnership interests in the Partnerships, (iii) the pledging of the membership interests in the LLC and (iv) the operations of the Borrower, its Subsidiaries, the LLC and the Partnerships. All such Governmental Approvals and third party consents and approvals shall be in full force and effect;
(h) Agent and Lenders shall have received certificates, dated the Closing Date, from the Borrower's insurers certifying (i) compliance with all of the insurance required by SECTION 6.8 hereof and by the Security Documents and (ii) ----------- that such insurance is in full force and effect;
(i) Agent and Lenders shall have received and shall be satisfied with the contents, results and scope of the Initial Reserve Report;
(j) Agent shall have completed and be satisfied with the results of a review of the Borrowing Base Properties and the other Collateral and the status of the title and the environmental condition of the Borrowing Base Properties;
(k) Borrower shall have delivered to the Agent copies of all Hedging Agreements currently in existence to which Borrower or any of its Subsidiaries is a party;
(l) Agent shall have received a certificate from an Authorized Person the Secretary of Borrower and each Loan Party of its Subsidiaries: (i) attesting i)attesting to the resolutions of such Person’s its Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person it is a party, (ii) authorizing specific officers of such Person party to execute the same, and (iii) attesting to the incumbency and signatures of such its specific officers of such Personofficers;
(dm) Agent shall have received copies of the Governing Documents of Borrower, each Loan Partyof its Subsidiaries, the LLC and the Partnerships, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personappropriate officer of each such entity;
(en) Agent shall have received a certificate of status with respect to each Loan PartyBorrower, each of its Subsidiaries, the LLC and the Partnerships, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Personentity, which certificate shall indicate that such Person entity is in good standing in such jurisdiction;
(fo) Agent shall have received certificates of status with respect to Borrower, each of its Subsidiaries, the LLC and the Partnerships, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of such entity) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower such entity is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(hp) Agent shall have received an opinion a certificate of insurance, together with the endorsements thereto, as are required by SECTION 6.8, the form and substance of ----------- which shall be satisfactory to Agent;
(q) Agent shall have received Collateral Access Agreements with respect to Borrower's corporate headquarters located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and Eastern American's headquarters located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
(r) Agent shall have received opinions of Borrower's counsel to each Loan Party, in form and substance satisfactory to AgentLender;
(i) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(js) Agent shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Borrower) that all tax returns required to be filed by Borrower, each Loan Party of its Subsidiaries, the LLC and the Partnerships have been timely filed and all taxes upon any Loan PartyBorrower, its Subsidiaries, the LLC and the Partnerships or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(kt) Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents;
(u) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each the Books and Records of Borrower’s, Servicer’sits Subsidiaries, the LLC and the Partnership, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s Borrower's representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsthe Lender Group, the results of which shall be satisfactory to Agent;
(lv) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower's senior management, the results of which are satisfactory to Agent in its sole discretion;
(mw) Agent Lender shall have received the Borrower's Closing Date Business Plan;
(nx) Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(oy) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Borrower shall have received all licenses, approvals or evidence of other actions required by any Person or Governmental Authority in connection with the execution and delivery by such Person Borrower and its Subsidiaries of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its businessthereby;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(qz) Agent shall have received an irrevocable initial request for an Advance Indenture Compliance Certificate from the chief financial officer or issuance president of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, Borrower certifying that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) the Advances and the Term Loan will not result in a fully-executed payoff letter evidencing default or event of default under the Indenture and (Aii) demonstrating, in reasonable detail, compliance by Borrower with the release by the DZ Trustee Fixed Charge Coverage Ratio (as defined in the Intercreditor Agreement), on behalf Indenture) requirement set forth in SECTION 4.7 (i) of the DZ Secured PartiesIndenture, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, after giving effect --------------- to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer Advances and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)Term Loan; and
(saa) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)its counsel.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each the Lender Group (or any member thereof) to make the initial extensions of Advances (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each LenderAgent, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before November 16, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2004;
(b) Collateral Agent shall have received all financing statements required by each Agent, duly authorized by Borrower and the Guarantors and evidence acceptable to the Collateral Agent of such filing;
(c) Agents shall have received each of the following documents, in form and substance satisfactory to each Agent, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lender,Disbursement Letter;
(ii) the Closing Officers’ Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,;
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower),Subsidiary Documents; and
(iv) a consent from Equitable approving the Disbursement Letter for the initial Advance,
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Loan Pricing AgreementSpecial Dividend.
(cd) Agent Agents shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such PersonBorrower’s Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent Agents shall have received copies of the Borrower’s Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ef) Agent Agents shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent Agents shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictions;
(h) Agents shall have received a certificate from the Secretary of Guarantor attesting to the resolutions of Guarantor’s Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which Guarantor is a party and authorizing specific officers of Guarantor to execute the same;
(i) Agents shall have received copies of Guarantor’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of Guarantor;
(j) Agents shall have received a certificate of status with respect to Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Guarantor, which certificate shall indicate that Guarantor is in good standing in such jurisdiction;
(gk) [INTENTIONALLY OMITTED]Agents shall have received certificates of status with respect to Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Guarantor is in good standing in such jurisdictions;
(hl) Collateral Agent shall have received an opinion received, with respect to all Real Property owned by the Borrower or any of counsel its Subsidiaries and identified on Schedule R-1, (i) Mortgages with respect to each Loan Partyparcel composing such Real Property and (ii) a legal opinion from counsel, in form and substance satisfactory to Collateral Agent, with respect to such Mortgages.
(m) Agents shall have received from Borrower copies of the Ocean Spray Documents;
(n) No Default or Event of Default exists as of the Closing Date;
(o) Agents shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.7, the form and substance of which shall be satisfactory to each Agent;
(ip) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent Agents shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer or treasurer of Borrower) that that, except as listed on Schedule 3.1(p), all tax returns required to be filed by each Loan Party Borrower have been timely filed and all taxes upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(kq) Agent Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder and there shall be no outstanding A Advances;
(r) Agents shall have completed its their business, legal, and collateral due diligence, including (i) a collateral audit and review of each Borrower’s books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsthe Lender Group, the results of which shall be satisfactory to each Agent;
, and (lii) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and an inspection of each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)locations where Inventory is located, the results of which are shall be satisfactory to Agent in its sole discretioneach Agent;
(ms) Agent Agents shall have received Borrower’s Closing Date Business Plan together with a certificate of the chief executive officer of Borrower stating that the Closing Date Business PlanPlan has been prepared on a reasonable basis and in good faith and is based on assumptions believed by Borrower to be reasonable at the time made and from the best information then available to Borrower;
(nt) Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(ou) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Borrower 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 Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent thereby;
(v) Agents shall have received evidence, opinions of legal counsel to Borrower and Guarantors in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its businessAgents;
(pw) proceeds of the Term Loan and the B Advances made on the Closing Date shall be deposited in a blocked account, which shall be under the dominion and control of the Collateral Agent shall have received evidence, in form and substance subject to a control agreement satisfactory to the Collateral Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(sx) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)each Agent.
Appears in 1 contract
Sources: Loan and Security Agreement (Northland Cranberries Inc /Wi/)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below: -44-
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before March 31, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2003;
(b) Agent Lender shall have received all financing statements required by Lender, duly authorized by the applicable Borrowers, and Lender shall have received searches reflecting the filing of all such financing statements;
(c) Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderCash Management Agreements,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsCopyright Security Agreement,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Disbursement Letter,
(iv) the Disbursement Letter for the initial AdvanceDue Diligence Letter,
(v) the Fee LettersLetter,
(vi) the Parent GuarantyGuarantor Security Agreement,
(vii) the Perfection CertificateGuaranty,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, andIntercompany Subordination Agreement,
(ix) the Loan Pricing Agreement.Officers' Certificate,
(cx) Agent the Patent Security Agreement,
(xi) the Pay-Off Letter, together with Uniform Commercial Code termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrowers,
(xii) the Securities Pledge Agreement, together with all Pledged Notes and certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, and
(xiii) the Trademark Security Agreement;
(d) Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party Borrower (i) attesting to the resolutions of such Person’s Board Borrower's board of Directors directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, same and (iiiii) attesting to certifying the incumbency names and true signatures of such specific the officers of such PersonBorrower authorized to sign each such Loan Document;
(de) Agent Lender shall have received copies of the each Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of such Borrower;
(ef) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent Lender shall have received certificates of status with respect to each Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of such Borrower) in which Borrower’s its failure to be duly qualified or licensed (or, as the case may be, duly incorporated and existing) would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Lender shall have received a certificate from the Secretary of each Guarantor (i) attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same and (ii) certifying the names and true signatures of the officers of such Guarantor authorized to sign each such Loan Document;
(i) Lender shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Lender shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Lender shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower such Guarantor is in good standing in such other jurisdictionjurisdictions;
(gl) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received an opinion a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender;
(m) Lender shall have received Collateral Access Agreements from the master landlord and the two (2) sublandlords with respect to the following location: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, 11th Floor, Chicago, IL 60606;
(n) Lender shall have received opinions of Borrowers' counsel to each Loan Party, in form and substance satisfactory to AgentLender;
(io) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Parent) that all tax returns required to be filed by each Loan Party Borrowers have been timely filed and all taxes upon any Loan Party, Borrowers or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted ProtestProtests;
(kp) Agent Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder and provided that Borrowers' trade payables are at a level and are aged consistently with Borrowers' historical practices;
(q) Lender and its counsel shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each of Borrower’s, Servicer’s, Borrowers' books and Borrower’s Subsidiaries’ Books, a review of Servicer’s records and Borrower’s collateral valuation methods, verification of each of Loan Party’s Borrowers' representations and warranties to AgentLender, the results of which shall be reasonably satisfactory to Lender and audit (ii) a review of each all material contracts of Borrower’s Borrowers, including the AOL Agreement, the results of which shall be reasonably satisfactory to Lender and Servicer’s systems its counsel;
(r) Lender shall have received completed reference checks with respect to Borrowers' senior management, the results of which are reasonably satisfactory to Lender in its sole discretion;
(s) Lender shall have received a final appraisal of Borrowers' Recurring Maintenance Revenues, the results of which shall be consistent with the preliminary appraisal report delivered to Lender;
(t) Borrowers shall have remitted by wire transfer to Lender all cash (and controlsdelivered all Cash Equivalents in such manner as directed by Lender) of Borrowers utilized to calculate the Required Availability;
(u) No Material Adverse Change shall have occurred in Borrowers' financial condition or prospects or the value of the Collateral;
(v) Lender shall have received Borrowers' unaudited financial statements for the quarter and the fiscal year ended December 31, 2002.
(w) Borrowers shall have paid all Lender Expenses incurred on or before the Closing Date in connection with the transactions evidenced by this Agreement;
(x) Lender shall have conducted Uniform Commercial Code, tax lien and litigation searches, the results of which shall be satisfactory to AgentLender;
(ly) Agent Lender shall have received completed reference checks (including personal credit reportsevidence that all Liens created by Borrowers and Restricted Subsidiaries, tax lien other than Permitted Liens, have been discharged and litigation histories) with respect to the Loan Parties and each -47- shall have received an acknowledgement copy of the Executive Officers and filings of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇such discharge, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are in each case satisfactory to Agent in its sole discretionLender;
(mz) Agent Lender shall be satisfied with the takeover audit, which shall include expanded reviews of deferred revenues, accrued liabilities and unapplied cash;
(aa) Lender shall have received satisfactory evidence that not less than the Closing Date Business PlanRequired Library of all existing Copyrights of Borrowers have been registered with the United States Copyright Office (or any similar office of any other jurisdiction in which Copyrights are used), and that all such Copyrights and any proceeds thereof are specifically encumbered by the Copyright Security Agreement;
(nbb) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Borrowers 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 Person Borrowers of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)thereby; and
(scc) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (set forth below: the making of such initial extensions of credit by a Closing Date shall occur on or before July 31, 2002; Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):
(a) Agent shall have received a Filing Authorization Letterall financing statements required by Lender, duly executed by Borrower the applicable Borrowers, and Servicer, together with appropriate Lender shall have received searches reflecting the filing of all such financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral;
(b) Agent statements; Lender shall have received each of the following documents, in the form and substance of which are satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as : Assignment of Life Insurance Policies, the Closing Date and a Transferee Letter from each such Lender,
(ii) Cash Management Agreements, the Closing Control Agreements, the Disbursement Letter, the Due Diligence Letter, the Fee Letter, the Guaranty, the Guarantor Security Agreement, the Intercompany Subordination Agreement, the Trademark Security Agreement, the Officers' Certificate, certifying as the Pay-Off Letter, together with termination statements under the Code and other documentation evidencing the termination by Existing Lender of its Liens in and to the accuracy properties and completenessassets of Borrowers, the Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, a Borrowing Base Certificate dated as of the Closing Date, and a Compliance Certificate dated as of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower),
(iv) the Disbursement Letter for the initial Advance,
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Loan Pricing Agreement.
(c) Agent Date; Lender shall have received a certificate from an Authorized Person the secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(d) Agent ; Lender shall have received copies of the each Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Person;
(e) Agent the secretary of such Borrower; Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Dateon or after July 1, 2002, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(f) Agent ; Lender shall have received certificates of status with respect to each Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of such Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that such Borrower is in good standing in such other jurisdiction;
(g) [INTENTIONALLY OMITTED]
(h) Agent jurisdictions; Lender shall have received an opinion a certificate from the secretary of counsel each Guarantor attesting to the resolutions of such Guarantor's board of directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same; Lender shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the secretary of such Guarantor; Lender shall have received a certificate of status with respect to each Loan PartyGuarantor, dated on or after July 1, 2002, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction; Lender shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions; Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which are satisfactory to Agent;
Lender; Lender shall have received Collateral Access Agreements with respect to the following locations: (i) Agent Borrowers' leased facility in Dalton, Georgia and (ii) the facility operated by Springs Industries, Inc. in Lancaster, South Carolina, together with any consignment financing statement required by Lender with respect to such facility; Lender shall have received opinions of Borrowers' counsel, the Approved Forms and Required Procedures, all in form and substance of which are satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent Lender; Lender shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Parent) that all tax returns required to be filed by each Loan Party Borrowers have been timely filed and all taxes upon any Loan Party, Borrowers or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, excise taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent ; Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder; Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each of Borrower’s, Servicer’s, Borrowers' books and Borrower’s Subsidiaries’ Books, a review of Servicer’s records and Borrower’s collateral valuation methods, verification of each of Loan Party’s Borrowers' vendors, Equipment and representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsLender, the results of which shall be satisfactory to Agent;
Lender, (lii) Agent an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Lender and (iii) a review of Borrowers' material contracts; Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrowers' senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(m) Agent ; Lender shall have received an appraisal of the Liquidation Percentage applicable to Borrowers' Inventory and an appraisal of Borrowers' Equipment, the results of which shall be satisfactory to Lender; Lender shall have received Borrowers' Closing Date Business Plan;
(n) Borrower ; Borrowers shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(o) Other than ; Lender shall have received a phase-I or phase-II environmental report with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction each parcel of organization) in Real Property owned by any Borrower for which such Person’s failure environmental reports have been prepared; the environmental consultants retained for such reports, the scope of the reports, and remediation costs and procedures, if any, and the results thereof shall be acceptable to be duly qualified or licensed would not cause a Material Adverse Effect, Lender and its counsel; Lender shall have received copies of each of BorrowerBorrowers' Material Contracts, Borrower’s Subsidiaries together with a certificate of the secretary of the applicable Borrower certifying each such document as being a true, correct, and Servicer complete copy thereof; Borrowers 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 Person Borrowers of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent thereby; Lender shall have received evidence, in form and substance satisfactory to Agent, evidence that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) Borrowers' have prepaid the release by premiums owed through the DZ Trustee (as defined in the Intercreditor Agreement), on behalf Maturity Date for each of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified thereinLife Insurance Policies, and (ii) that certain Assignment Agreement, dated Lender has been named as of the date hereof, by and between Servicer and loss payee for each such policy; Lender shall have received satisfactory evidence that Parent has submitted the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and appropriate documentation to the Purchased Loans (as defined therein)relevant Governmental Authority to dissolve Synco International, Inc.; and
(s) and all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Sources: Loan Agreement (Synalloy Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions extension of credit provided for hereunder hereunder, is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent Lender (the making of such initial extensions extension of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the following), of each of the following conditions precedent)::
(a) Agent the Closing Date shall occur on or before June 30, 2004;
(b) Lender shall have received a Filing Authorization Letter, duly executed by Borrower and Servicer, together with appropriate financing statements to be duly filed in such office or offices as may be necessary or, in the opinion of AgentLender, desirable to perfect the Trustee’s Lender's Liens in and to the Collateral;
(bc) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderCash Management Agreements,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsControl Agreements,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Disbursement Letter,
(iv) the Disbursement Letter for the initial AdvanceFee Letter,
(v) the Fee LettersPatent Security Agreement,
(vi) the Parent GuarantyPay-Off Letter, together with termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries,
(vii) the Perfection Certificate,Trademark Security Agreement, and
(viii) releases and terminations evidence satisfactory to the Lender that the Tulin Note has been amended to provide for an extension of all security interests, liens and encumbrances on the Collateral original maturity date thereof (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, andthe "Original Maturity Date") to a date which is not prior to six months after the Maturity Date to the extent the Borrower is unable to satisfy the Availability criteria set forth in Section 7.7(b)(ii) hereof;
(ixd) the Loan Pricing Agreement.
(c) Agent Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party Borrower (i) attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such PersonBorrower;
(de) Agent Lender shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ef) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is validly subsisting and/or in good standing in such jurisdiction;
(fg) Agent Lender shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender;
(i) Lender shall have received Collateral Access Agreements with respect to the following locations: Borrower's offices in Taunton, Massachusetts; Borrower's retail stores in Lawrenceville, Georgia; Las Vegas, Nevada; Lightfoot, Virginia, Lake George, New York; Niagara Falls, New York; ▇▇▇▇▇▇▇ Florida, and ▇▇▇▇▇▇▇, ▇▇nnsylvania and Borrower's leased premises in New York, New York;
(j) Lender shall have received an opinion of Borrower's counsel to each Loan Party, in form and substance reasonably satisfactory to AgentLender;
(ik) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Personthe Borrower signed by its chief financial officer) that all tax returns required to be filed by each Loan Party Borrower and its Subsidiaries have been timely filed (after giving effect to any permitted extensions to file) and all taxes upon any Loan Party, Borrower and its Subsidiaries or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(kl) Agent Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents;
(m) Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each Borrower's and its Subsidiaries' books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s 's representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsLender, the results of which shall be satisfactory to AgentLender, (ii) an inspection of each of the locations where Borrower's and its Subsidiaries' Inventory is located, the results of which shall be satisfactory to Lender; and (iii) a review of all License Agreements, the form and substance of which must be acceptable in all respects to the Lender (including such agreements containing terms sufficient to enable the Lender to sell inventory relating to such License Agreements upon the exercise of Lender's rights and remedies hereunder);
(ln) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower's senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(mo) Agent Lender shall have received an appraisal of the Liquidation Percentage applicable to Borrower's and its Subsidiaries' Inventory, the results of which shall be satisfactory to Lender;
(p) Lender shall have received Borrower's Closing Date Business Plan;
(nq) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(or) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction Lender shall have received copies of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrowerthe License Agreements, Borrower’s together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and complete copy thereof;
(s) Borrower and each of its Subsidiaries and Servicer 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 Person Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)thereby; and
(st) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before February 23, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2001;
(b) Agent Lender shall have received all financing statements required by Lender, duly executed by Borrower, and Lender shall have received searches reflecting the filing of all such financing statements;
(c) Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderFee Letter,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsMortgages,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account Subordination of Borrower)Mortgage,
(iv) the Disbursement Letter for the initial AdvanceSurvey Affidavit/Indemnification,
(v) the Fee LettersOfficers' Certificate,
(vi) the Parent GuarantyTrademark Security Agreement,
(vii) the Perfection Certificate▇▇▇▇▇▇▇ ▇▇ Ship Mortgage,
(viii) releases and terminations the Subordination of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by LenderPreferred Fleet Mortgage, and
(ix) the Loan Pricing Intercreditor Agreement.
(cd) Agent Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Board of Directors Borrower's Manager authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent Lender shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ef) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent Lender shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender;
(i) Lender shall have received an opinion of counsel to each Loan PartyBorrower's counsel, in form and substance satisfactory to Agent;
(i) Agent shall have received the Approved Forms and Required ProceduresLender in its Permitted Discretion, all in form and substance satisfactory such opinion to Agent, which shall also be attached include an opinion as exhibits to the Closing Certificatedue issuance and valid existence of Borrower's Gaming Licenses;
(j) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Borrower) that all tax returns required to be filed by each Loan Party Borrower have been timely filed and all taxes upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each Borrower's books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s 's representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsLender, the results of which shall be satisfactory to AgentLender, and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Lender;
(l) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower's senior management, the results of which are satisfactory to Agent Lender in its sole discretionPermitted Discretion;
(m) Agent Lender shall have received from an independent third party professional selected by Lender, an evaluation of the enterprise value of Borrower's Ice Harbor Facility, the results of which shall be satisfactory to Lender;
(n) Lender shall have received Borrower's Closing Date Business Plan;
(no) Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(op) Other than with respect Lender shall have received mortgagee title insurance policies (or marked commitments to qualifications issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to conduct business in jurisdictions Lender (other than such Person’s jurisdiction of organizationeach a "Mortgage Policy" and, collectively, the "Mortgage Policies") in which amounts reasonably satisfactory to Lender assuring Lender that, after giving effect to the Intercreditor Agreement, the Mortgages on such Person’s failure Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance reasonably satisfactory to be duly qualified or licensed would not cause a Material Adverse Effect, Lender;
(q) Lender shall have received copies of each of Borrowerthe following documents, Borrower’s Subsidiaries together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and Servicer complete copy thereof: (i) the Senior Note Documents, (ii) the Operating Agreement, (iii) the Lease, (iv) the Ice Harbor Parking Agreement, (v) the Consulting Agreements, and (vi) the Certificate of Designation;
(r) Borrower shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority Authority, including the Gaming Commission, in connection with the execution and delivery by such Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for hereby and thereby;
(s) the conduct ▇▇▇▇▇▇▇ ▇▇ Ship Mortgage shall have been recorded in the applicable filing office of their respective businesses the United States Coast Guard and such other governmental agency as contemplated by this Agreement shall be necessary, and Agent Lender shall have received evidenceconfirmation, in form and substance satisfactory to AgentLender, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its businessof such recordation;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(st) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent Lender; and
(u) Borrower shall have the approval of Agent of such documents and legal matters under this Section 3.1(v) Required Availability after giving effect to be evidenced by the initial Advance or initial issuance extensions of a Letter of Credit credit hereunder).
Appears in 1 contract
Sources: Loan and Security Agreement (Peninsula Gaming Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before December 31, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2001;
(b) Agent Lender shall have received all financing statements required by Lender, duly executed by Borrower, and Lender shall have received searches reflecting the filing of all such financing statements;
(c) Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderControl Agreements,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsDisbursement Letter,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Due Diligence Letter,
(iv) the Disbursement Letter for the initial AdvanceFee Letter,
(v) the Fee LettersGuaranty,
(vi) the Parent GuarantyCash Management Agreements,
(vii) the Perfection Officers' Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens)Stock Pledge Agreement, together with such UCC financing statement amendments terminating or partially releasing such security interests all certificates representing the shares of Stock pledged thereunder, as may be required by Lender, andwell as Stock powers with respect thereto endorsed in blank,
(ix) the Loan Pricing Subsidiary Stock Pledge Agreement., together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, and
(cx) Agent the Intercreditor Agreement;
(d) Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent Lender shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ef) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent Lender shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender;
(i) Lender shall have received Collateral Access Agreements with respect to the following location: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇;
(j) Lender shall have received an opinion of Borrower's counsel to each Loan Party, in form and substance satisfactory to AgentLender;
(ik) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Borrower) that all tax returns required to be filed by each Loan Party Borrower have been timely filed and all taxes upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(kl) Agent Lender and Lender's counsel shall have been provided with a true and complete copy of each Billing Services Agreement listed on Schedule 3.1(l) and shall have had a reasonable opportunity to review each such Billing Services Agreement, and Lender either (i) shall have advised Borrower that each such Billing Services Agreement is an Approved Billing Services Agreement, or, (ii) as to any Billing Services Agreements that are not Approved Billing Services Agreements, Lender shall have advised Borrower that Lender nevertheless is prepared to close (with the LEC Accounts relating to such non-approved Billing Services Agreements, if any, not constituting Eligible LEC Accounts) and Borrower shall have agreed in writing to such arrangement with respect to non-approved Billing Services Agreements;
(m) Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder and Lender shall have received satisfactory evidence that Borrower's current liabilities are reasonably current and consistent with Borrower's historical practices;
(n) Lender shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each Borrower's books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s 's representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsLender, the results of which shall be satisfactory to AgentLender;
(lo) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower's senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(mp) Agent Lender shall have received the Borrower's 2002 Business Plan and Closing Date Business Plan;
(nq) Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(or) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction Lender shall have received copies of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrowerthe Carrier Agreements listed on Schedule 3.1(r), Borrower’s Subsidiaries together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and Servicer complete copy thereof;
(s) Borrower 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 Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)thereby; and
(st) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each the Lender Group (or any member thereof) to make the initial extensions of Advance or otherwise to extend any credit provided for hereunder (other than any initial Advance made to pay fees due to the Agent or any Lender hereunder or under the Fee Letter), is subject to the fulfillment, to the satisfaction of Agent and each Lender, Lender of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent shall have received a Filing Authorization Letter, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral;
(b) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderIntellectual Property Security Agreement,
(ii) the Closing CertificateFee Letter, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,and
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower),
(iv) the Disbursement Letter for the initial Advance,
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens)Pledge Agreement, together with such UCC financing statement amendments terminating all certificates representing the shares of Stock or partially releasing such security other equity interests as may be required by Lenderpledged thereunder, and
(ix) the Loan Pricing Agreementincluding Stock or LLC powers with respect thereto endorsed in blank.
(cb) Agent shall have received a certificate from an Authorized Person the Secretary of each Loan Party Borrower (i) attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, same and (iiiii) attesting to certifying the incumbency names and true signatures of such specific the officers of such PersonBorrower authorized to sign each Loan Document to which such Borrower is a party;
(c) [Intentionally Omitted],
(d) Agent shall have received copies of the Governing Documents of each Loan Party, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Person;
(e) Agent shall have received a certificate of status with respect to each Loan Party, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate that such Person is in good standing in such jurisdiction;
(f) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction (other than such Person’s jurisdiction of organization) in which Borrower’s failure to be duly qualified or licensed would cause a Material Adverse Effect, which certificates shall indicate that Borrower is in good standing in such other jurisdiction;
(g) [INTENTIONALLY OMITTED]
(h) Agent shall have received an opinion of counsel to each Loan PartyBudget, in form and substance satisfactory to Agent, evidencing that Borrowers have sufficient liquidity available to meet operating needs through the term of this Agreement;
(ie) Agent Borrowers shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent shall have received satisfactory evidence (including a certificate of an Authorized Person) that all tax returns required to be filed by each Loan Party have been timely filed and all taxes upon any Loan Party, or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agent;
(l) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretion;
(m) Agent shall have received the Closing Date Business Plan;
(n) Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(of) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidenceevidence that the Warehouse Facility is in full force and effect (on substantially the same terms as in effect prior to the Relief Date) and that no default or event of default exists thereunder and that the continued maintenance of the Warehouse Facility shall have been approved by the Court;
(g) the Interim Order, in form and substance satisfactory to AgentLenders, that Servicer holds approving the transactions contemplated hereby and granting a currently effective California Lender’s Finance Licenses authorizing it first priority perfected security interest in the Collateral subject only to make Senior Claims and hold loans in California Avoidance Actions (which claims to proceeds of the Avoidance Actions shall be pari passu claims) shall have been entered by the Court and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, a certified copy of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Lienssuch Interim Order;
(qh) Agent the automatic stay shall have been modified to permit the creation and perfection of Agent's Liens and security interests and shall have been automatically vacated to permit enforcement of Agent's rights and remedies under the Loan Documents;
(i) Agent's counsel shall have received an irrevocable initial request for an Advance or issuance copies of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form all "first day" pleadings and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, orders submitted to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt Court by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)Borrowers; and
(sj) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Agent.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall occur on or before August 6, 2003;
(b) Lender shall have received a UCC Filing Authorization Letter, duly executed by Borrower and Servicereach Guarantor, together with appropriate financing statements on Form UCC-1, duly filed in such office or offices as may be necessary or, in the opinion of AgentLender, desirable to perfect the TrusteeLender’s Liens in and to the Collateral, and Lender shall have received searches reflecting the filing of all such financing statements;
(bc) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a the Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderNote,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsDisbursement Letter,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Due Diligence Letter,
(iv) the Disbursement Letter for the initial AdvanceFee Letter,
(v) the Fee LettersGuarantor Security Agreement,
(vi) the Parent Guaranty,
(vii) the Perfection CertificateIntercompany Subordination Agreement,
(viii) releases and terminations the Mortgages for all parcels of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, andReal Property Collateral,
(ix) the Loan Pricing AgreementOfficers’ Certificate,
(x) the Stock Pledge Agreement and, to the extent such shares of Stock are certificated, all certificates representing the shares of Stock pledged thereunder, as well as stock powers with respect thereto endorsed in blank,
(xi) the Trademark Security Agreement (Trademarks and Trademark Applications), and
(xii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination of the Liens of City National Bank in and to the properties and assets of Parent.
(cd) Agent Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Parent attesting to the resolutions of such PersonParent’s Board of Directors authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Parent is a party, (ii) party and authorizing specific officers of such Person Parent to execute the same, and ;
(iiie) Lender shall have received a certificate from the Secretary of ES Realty attesting to the incumbency resolutions of ES Realty’s Board of Directors authorizing the execution, delivery, and signatures performance of such this Agreement and the other Loan Documents to which ES Realty is a party and authorizing specific officers of such PersonES Realty to execute the same;
(df) Agent Lender shall have received copies of the each Borrower’s Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of each Borrower;
(eg) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fh) Agent Lender shall have received certificates of status with respect to each Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that such Borrower is in good standing in such other jurisdictions;
(i) Lender shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor’s board of directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(j) Lender shall have received copies of each Guarantor’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(k) Lender shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that Guarantor is in good standing in such jurisdiction;
(gl) [INTENTIONALLY OMITTED]Lender shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(hm) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.7, the form and substance of which shall be satisfactory to Lender;
(n) Lender shall have received a Collateral Access Agreement with respect to the following location: Parent’s headquarters located at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, California 91403;
(o) Lender shall have received an opinion of Borrower’s counsel to each Loan Party, in form and substance reasonably satisfactory to AgentLender;
(ip) Agent Lender shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent shall have received reasonably satisfactory evidence (including a certificate of an Authorized Personthe Vice President and Chief Financial Officer of Borrower) that all tax returns required to be filed by each Loan Party Borrower and its Subsidiaries have been timely filed and all taxes upon any Loan Party, Borrower and its Subsidiaries or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted ProtestProtest and Lender shall be satisfied, in its Permitted Discretion, with the contents and conclusions of Borrower’s Tax Lien Analysis;
(kq) Agent Lender shall have completed its business, legal, and collateral Collateral due diligence, including a collateral audit and review of each Borrower’s and its Subsidiaries books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsLender, the results of which shall be reasonably satisfactory to AgentLender;
(lr) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower’s senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(ms) Agent Lender shall have received the consolidated balance sheet of Parent and its Subsidiaries, prepared in accordance with GAAP, and dated April 30, 2003;
(t) Lender shall have received Parent’s Closing Date Business Plan, together with a certificate of the Vice President and Chief Financial Officer of Parent certifying such Closing Date Business Plan as being such officer’s good faith best estimate of the financial performance of Parent during the period covered thereby;
(nu) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable Agreement;
(v) Lender shall have received, for no fewer than 16 parcels of Eligible Real Property located in California (i) appraisals prepared in accordance with FIRREA and satisfactory to Lender and (ii) mortgage title insurance policies issued by a title insurance company satisfactory to Lender (each a “Mortgage Policy” and, collectively, the Fee Letters “Mortgage Policies”) in amounts satisfactory to Lender assuring Lender that the Mortgages on such Eligible Real Property are valid and this Agreementenforceable first priority mortgage Liens on such Eligible Real Property free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in each case, form and substance satisfactory to the extent then due and payableLender;
(ow) Other Lender shall have received, for no fewer than with respect 16 parcels of Eligible Real Property located in California, a Phase-I environmental report satisfactory to qualifications to conduct business Lender in jurisdictions its sole discretion;
(other than such Person’s jurisdiction x) Lender shall have received copies of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrowerthe Environmental Risk Report and the Tax Lien Analysis, Borrower’s Subsidiaries together with a certificate of the Secretary of Parent certifying each such document as being a true, correct, and Servicer complete copy thereof;
(y) Borrower and each of the Guarantors 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 Person Borrower or the Guarantors of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)thereby; and
(sz) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent shall have received a Filing Authorization Letter, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed satisfaction of the conditions precedent set forth in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the CollateralSection 3.1 above;
(b) Agent Parent shall have received each the proceeds of the following documentsSenior Notes in an amount sufficient, together with the equity investment by ValueAct Capital in Seitel Holdings and Borrowers' and their Subsidiaries' cash on hand, to fully redeem and cancel the Existing Notes tendered for payment and to pay all merger consideration for the Acquisition and evidence thereof, reasonably satisfactory to Lender, shall have been delivered to Lender;
(c) The Existing Notes tendered for payment shall have been fully redeemed and cancelled;
(d) The Acquisition shall have been consummated and evidence thereof, reasonably satisfactory to Lender, shall have been delivered to Lender;
(e) Borrowers shall have Excess Availability of $20,000,000.00 on the Closing Date immediately after giving effect to the Acquisition and Lender shall have received evidence thereof, reasonably satisfactory to Lender;
(f) Lender shall have received the Parent Stock Pledge, in form and substance satisfactory to AgentLender in the exercise of its Permitted Discretion, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lender,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower),
(iv) the Disbursement Letter for the initial Advance,
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, ; and
(ix) the Loan Pricing Agreement.
(c) Agent shall have received a certificate from an Authorized Person of each Loan Party (i) attesting to the resolutions of such Person’s Board of Directors authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person is a party, (ii) authorizing specific officers of such Person to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(d) Agent shall have received copies of the Governing Documents of each Loan Party, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Person;
(e) Agent shall have received a certificate of status with respect to each Loan Party, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate that such Person is in good standing in such jurisdiction;
(f) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction (other than such Person’s jurisdiction of organization) in which Borrower’s failure to be duly qualified or licensed would cause a Material Adverse Effect, which certificates shall indicate that Borrower is in good standing in such other jurisdiction;
(g) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received an the opinion of Dechert LLP, as counsel to each Loan PartySeitel Holdings, in form and substance satisfactory to AgentLender in the exercise of its Permitted Discretion;
(h) the Senior Notes shall (i) Agent shall have received been issued pursuant to the Approved Forms and Required Procedures, all Senior Note Offering in form and substance reasonably satisfactory to AgentLender and its counsel in their Permitted Discretion, which shall also (ii) not mature, by their terms until at least 90 days after the Maturity Date, (iii) be attached as exhibits to the Closing Certificate;
(j) Agent shall have received satisfactory evidence (including a certificate general unsecured obligations of an Authorized Person) that all tax returns required to be filed by each Loan Party have been timely filed and all taxes upon any Loan Party, or their respective properties, assets, incomeParent, and franchises (including Real Property taxesiv) be effectively, sales taxes, but not contractually subordinated to all indebtedness and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agent;
(l) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to other obligations owing under the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretion;
(m) Agent shall have received the Closing Date Business Plan;
(n) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, Documents to the extent then due and payable;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person of the Loan Documents or with the consummation value of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account assets and the Trust Account, other collateral securing the Indebtedness and Obligations under the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(s) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder).Documents
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make an Advance on the initial extensions occasion of credit provided for the Initial Extension of Credit hereunder is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent before or concurrently with the Initial Extension of Credit and this Agreement shall become effective on and as of the date hereof (the making of “Closing Date”) when all such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):shall have been satisfied:
(a) Agent The majority of the Term C Lenders shall have received a Filing Authorization Letter, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and consented to the Collateral;
(b) Agent shall have received each of the following documents, in form Refinancing and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lender,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower),
(iv) the Disbursement Letter for the initial Advance,
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (any other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Loan Pricing Agreement.
(c) Agent shall have received a certificate from an Authorized Person of each Loan Party (i) attesting to the resolutions of such Person’s Board of Directors authorizing the execution, delivery, and performance of transactions contemplated under this Agreement and the other Loan Documents to which such Person is a party, (ii) authorizing specific officers of such Person to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;Documents.
(db) The Administrative Agent shall have received copies of be reasonably satisfied with the Governing Documents corporate and legal structure and capitalization of each Loan Party, as amendedincluding the terms and conditions of the charter, modifiedbylaws and each class of capital stock of each Loan Party and of each agreement or instrument relating to such structure or capitalization.
(c) The Administrative Agent shall be reasonably satisfied that all Debt of the U.S. Borrower and its Restricted Subsidiaries outstanding immediately before giving effect to the Refinancing, other than the Debt (the “Surviving Debt”) identified on Schedule 3.01(c), has been prepaid, redeemed or supplemented defeased in full or otherwise satisfied and extinguished and that all such Debt on Schedule 3.01(c) shall be on terms and conditions reasonably satisfactory to the Administrative Agent.
(d) On the Closing Date, certified by an Authorized Person;the Leverage Ratio, determined on a pro forma basis after giving effect to the Refinancing and any other transactions contemplated under the Loan Documents, shall not exceed 7.00:1.
(e) Agent Before giving effect to the Refinancing and the other transactions contemplated by this Agreement, there shall have received a certificate occurred no material adverse change in the business, financial condition, operations, assets, liabilities or prospects of status with respect to each any Loan PartyParty or any of its Subsidiaries since December 31, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate that such Person is in good standing in such jurisdiction;2002.
(f) Agent There shall have received certificates of status with respect occurred no material adverse change in loan syndication, financial or capital market conditions generally that has impaired or could reasonably be expected to Borrower, each dated within 30 days impair syndication of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction (other than such Person’s jurisdiction of organization) in which Borrower’s failure to be duly qualified or licensed would cause a Material Adverse Effect, which certificates shall indicate that Borrower is in good standing in such other jurisdiction;Facilities.
(g) [INTENTIONALLY OMITTED]
(h) Agent There shall have received an opinion exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of counsel to each Loan Partyits Subsidiaries pending or threatened before any court, in form and substance satisfactory to Agent;
governmental agency or arbitrator that (i) Agent shall would reasonably be likely to have received a Material Adverse Effect or (ii) purports to affect the Approved Forms and Required Procedureslegality, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent shall have received satisfactory evidence (including a certificate validity or enforceability of an Authorized Person) that all tax returns required to be filed by each Loan Party have been timely filed and all taxes upon any Loan Party, or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agent;
(l) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretion;
(m) Agent shall have received the Closing Date Business Plan;
(n) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each caseany Note, to the extent then due and payable;
(o) Other than with respect to qualifications to conduct business in jurisdictions (any other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified Loan Documents, any Related Document or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person of the Loan Documents or with the consummation of the transactions contemplated thereby hereby.
(h) Nothing shall have come to the attention of the Lender Parties to lead them to believe (i) that the Information Memorandum was or for has become misleading, incorrect or incomplete in any material respect or (ii) that, following the conduct consummation of the Refinancing, either Borrower or its Subsidiaries would not have good and marketable title to all material assets of such Borrower and such Subsidiaries reflected in the Information Memorandum; without limiting the generality of the foregoing, the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of the Borrowers and their respective businesses Restricted Subsidiaries as they shall have reasonably requested.
(i) All governmental and third party consents and approvals necessary in connection with the Refinancing, the Loan Documents and the Related Documents and the transactions contemplated thereby shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Administrative Agent) and shall remain in effect; all applicable waiting periods shall have expired without any action being taken by this Agreement any competent authority; and no law or regulation shall be applicable in the reasonable judgment of the Administrative Agent that restrains, prevents or imposes materially adverse conditions upon the Loan Documents and the Related Documents and the transactions contemplated thereby.
(j) The Administrative Agent shall have received evidencethe fees referred to in Section 2.08(c) to be received on the Closing Date, and each Lead Arranger shall have received fees under a separate letter agreement, dated May 21, 2003, between the U.S. Borrower and such Lead Arranger.
(k) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make the Administrative Agent (unless otherwise specified) and hold loans (except for the Notes) in California and to conduct its business;sufficient copies for each Lender Party:
(pi) Agent shall have received evidence, in form and substance satisfactory The Notes (other than the Term C Notes) payable to Agent, the order of the establishment Lenders (other than the Term C Lenders).
(ii) Certified copies of the Collection Account resolutions of the Board of Directors of each Borrower and each other Loan Party approving each Loan Document to which it is or is to be a party and the Trust Accounttransactions contemplated thereby, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the perfection Refinancing, this Agreement, the Notes and each other Loan Document.
(iii) A copy of a certificate of the TrusteeSecretary of State of the jurisdiction of its incorporation, or in the case of the Canadian Borrower, the Ministry of Consumer and Commercial Relations of the Province of Ontario (the “Ontario Ministry”), dated reasonably near the date of the Initial Extension of Credit, listing the charter of each Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Borrower’s Liens;or such other Loan Party’s charter on file in his office, (B) each such Borrower and each such other Loan Party have paid all franchise taxes to the date of such certificate and (C) each Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State or Province of the jurisdiction of its incorporation.
(qiv) Agent shall have received an irrevocable initial request for an Advance A certificate of each Borrower and each other Loan Party, signed on behalf of such Borrower and such other Loan Party by its President or issuance a Vice President and its Secretary or any Assistant Secretary (or in the case of Letters Accuride Erie by a duly authorized officer of the sole member of its general partner), dated the date of the Initial Extension of Credit (the statements made in an aggregate amount equal to or greater than $25,000,000;
(r) Agent which certificate shall have received evidence, in form be true on and substance satisfactory to Agent, that as of the Closing Datedate of the Initial Extension of Credit), all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing certifying as to (A) the release by absence of any amendments to the DZ Trustee (as defined charter of such Borrower or such other Loan Party since the date of the certificate referred to in the Intercreditor AgreementSection 3.01(k)(iii), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession a true and correct copy of the Portfolio bylaws of such Borrower and such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the absence of any proceeding for the dissolution or liquidation of such Borrower or such other Loan Party, (D) the truth and accuracy of the representations and warranties contained in the Loan Documents evidencing the Portfolio Loans in all material respects as though made on and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereofof the Initial Extension of Credit and (E) the absence of any event occurring and continuing, by or resulting from the Initial Extension of Credit, that constitutes a Default.
(v) A certificate of the Secretary or an Assistant Secretary of each Borrower and between Servicer each other Loan Party certifying the names and true signatures of the officers of such Borrower and such other Loan Party authorized to sign this Agreement, the Notes and each other Loan Document to which they are or are to be parties and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(s) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance delivered hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)thereunder.
Appears in 1 contract
Sources: Credit Agreement (Accuride Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before December 21, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2001;
(b) Agent Lender shall have received all financing statements required by Lender, duly executed by Borrower, and Lender shall have received searches reflecting the filing of all such financing statements;
(c) Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderCopyright Security Agreement,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsDisbursement Letter,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Intercompany Subordination Agreement,
(iv) the Disbursement Letter for the initial AdvanceDue Diligence Letter,
(v) the Fee LettersLetter,
(vi) the Parent GuarantyOfficers' Certificate,
(vii) the Perfection CertificatePatent Security Agreement,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens)Stock Pledge Agreement, together with such UCC financing statement amendments terminating or partially releasing such security interests all certificates representing the shares of Stock pledged thereunder, as may be required by Lender, andwell as Stock powers with respect thereto endorsed in blank,
(ix) the Loan Pricing Trademark Security Agreement., and
(cx) Agent the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower;
(d) Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent Lender shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ef) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 15 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent Lender shall have received certificates of status with respect to Borrower, each dated within 30 35 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender;
(i) ender shall have received Collateral Access Agreements with respect to the following location: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇;
(j) Lender shall have received an opinion of Borrower's counsel to each Loan Party, in form and substance satisfactory to AgentLender;
(ik) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Borrower) that all tax returns required to be filed by each Loan Party Borrower have been timely filed and all taxes upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(kl) Agent Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder; provided, that Borrower's trade payables are at a level and are aged consistent with Borrower's historical practices;
(m) Lender shall have received satisfactory evidence that not less than the Required Library of all existing copyrights of Borrower (other than Exempt Copyrights) have been registered with the United States Copyright Office, and that all such copyrights (other than Exempt Copyrights) and any proceeds thereof are specifically encumbered by the Copyright Security Agreement;
(n) Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each Borrower's books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s 's representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsLender, the results of which shall be satisfactory to AgentLender, (ii) a review of the projected proceeds from the exercise of common stock options, (iii) a review of Borrower's Material Contracts, and (iv) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Lender;
(lo) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower's senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(mp) Agent Lender shall have received the Borrower's Closing Date Business Plan;
(nq) Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(or) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction Lender shall have received copies of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrowerthe Material Contracts, Borrower’s Subsidiaries the form and Servicer substance of which shall be reasonably satisfactory to Lender, together with a certificate of the General Counsel of Borrower certifying each such document as being a true, correct, and complete copy thereof;
(s) Borrower 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 Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its businessthereby;
(pt) Agent the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ payable issue shall have received evidence, in form and substance satisfactory been resolved to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)Lender's satisfaction; and
(su) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each the Lender Group (or any member thereof) to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lenderin its Permitted Discretion, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver set forth below; provided that, if all of the conditions precedent):set forth in this Section 3.2 are not satisfied as determined by Agent in its Permitted Discretion, on or before the date that is 90 days after the Closing Date, then this Agreement and the other Loan Documents shall be automatically terminated and the Lender Group shall have no further obligations of any kind hereunder or thereunder:
(a) the Activation Date shall occur on or before the date occurring ninety (90) days after the Closing Date;
(b) Each of the conditions set forth in Section 3.1 shall have been and continue at all times to be satisfied and Agent shall have received a certificate of the chief executive officer of Parent dated as of the Activation Date stating the same;
(c) Agent shall have completed a takeover audit of Borrowers by the Activation Date, the results of which shall be satisfactory to Agent in its Permitted Discretion.
(d) Agent shall have received a Filing Authorization Letterall financing statements required by Agent, duly executed authorized for filing by Borrower the Domestic Guarantors, and Servicer, together with appropriate Agent shall have received searches reflecting the filing of all such financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateralstatements;
(be) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executedexecuted or authorized to be filed, as appropriate, and each such document shall be in full force and effect:
(i) a Revolving Credit Note the Stock Pledge Agreements, together with all certificates representing the shares of Stock pledged thereunder for each Lender listing a principal sum equal to such Lender’s Commitment direct and indirect Subsidiary of any Borrower, as of the Closing Date and a Transferee Letter from each such Lenderwell as Stock powers with respect thereto endorsed in blank,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsTrademark Security Agreements,
(iii) Control Agreements the Share Mortgage together with all share certificates and executed transfers in blank in respect to of all Deposit Accounts shares charged by it and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Guarantee and Debenture,
(iv) the Disbursement Letter for the initial AdvanceControl Agreements,
(v) the Fee LettersCash Management Agreements together with verifications of the balances of the Cash Management Accounts subject thereto as of the Activation Date, it being acknowledged and agreed by Borrowers that, as an additional condition to the Activation Date, as of the Activation Date not less that $25,000,000 of Borrowers' cash shall be subject to Cash Management Agreements,
(vi) UCC termination statements and other documentation evidencing the Parent Guarantytermination by any prior secured parties of their respective Liens in and to the properties and assets of Borrowers and each Guarantor,
(vii) the Perfection CertificateGuaranties and the Subsidiary Documents,
(viii) releases Collateral Access Agreements from all lessors of Real Property where any Borrower maintains its Chief Executive Office and terminations of all security interests, liens Equipment maintaining Books and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating Records or partially releasing such security interests as may be required by Lenderkeeps its Books and Records for its business or operations, and
(ix) the Loan Pricing Agreement.Collateral Access Agreements in favor of Agent from all of Borrowers' information technology lessors;
(cf) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(g) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Agent;
(h) Agent shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Guarantor attesting to the resolutions of such Person’s Guarantor's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Guarantor is a party, (ii) party and authorizing specific officers of such Person Guarantor to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(di) Agent shall have received copies of the each Guarantor's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of such Guarantor;
(ej) Agent shall have received a certificate of status with respect to each Loan PartyGuarantor, each dated within 10 days of the Closing Activation Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonGuarantor, which certificate shall indicate that such Person Guarantor is in good standing in such jurisdiction;
(fk) Agent shall have received certificates of status with respect to Borrowereach Guarantor, each dated within 30 days of the Closing Activation Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of such Guarantor) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower such Guarantor is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(hl) Agent shall have received an opinion additional opinions of counsel to each Loan PartyBorrowers (including, without limitation, HH Australia and HH Canada) and Guarantors pertaining to such matters as Agent may determine as of the Activation Date, in form and substance satisfactory to Agent;
(im) Agent Borrowers shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached Availability as exhibits of the Activation Date after giving effect to the Closing Certificate;
(j) Agent shall have received satisfactory evidence (including a certificate payment of an Authorized Person) that all tax returns required to be filed by each Loan Party have been timely filed costs, fees and all taxes upon any Loan Party, or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent shall have completed its business, legal, and collateral expenses then due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agent;
(l) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretion;
(m) Agent shall have received and/or any Lender hereunder or under the Closing Date Business Planother Loan Documents and the contemplated initial Advances hereunder;
(n) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreementdeliver to Agent, in each caseform and content satisfactory to Agent, an opening balance sheet as of the effective date of the Spin-Off, reviewed by an independent certified public accountant and in form and content satisfactory to Agent in its Permitted Discretion, together with evidence satisfactory to Agent in its Permitted Discretion that Borrowers and their Subsidiaries have had available cash and Cash Equivalents in an aggregate amount not less than $40,000,000 at some time prior to the extent then due and payableActivation Date;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidenceUCC, tax lien, and judgment searches for all domestic jurisdictions (and the non-domestic equivalents of such searches) in form which Borrower and substance each Guarantor and Collateral may be located, the results of which searches show the recording of Agent's security interests and otherwise shall be satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans Agent in California and to conduct its businessPermitted Discretion;
(p) Agent The TMP Loan Agreement and, if any, Security Agreement between Company and TMP entered into in contemplation of the Spin-Off shall have received evidencebeen terminated, all obligations to TMP thereunder shall have been indefeasibly paid and satisfied in form full and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liensall liens granted thereunder shall have been terminated;
(q) Agent The Borrowers shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit executed and delivered all documents required by Agent and shall have satisfied all other conditions established by Agent in an aggregate amount equal its Permitted Discretion to or greater than $25,000,000cause HH Australia and HH Canada to become Borrowers hereunder;
(r) Agent shall have received evidence, in form and substance reviewed all of Borrowers' material contracts including without limitation all seller notes payable by a Borrower or any of its Subsidiaries and the results of such review shall be satisfactory to Agent, Agent in its Permitted Discretion;
(s) Agent shall have received identifications of the Designated Account and the Designated Account Bank from Administrative Borrower prior to the Activation Date;
(t) Agent and Borrowers shall have agreed to a mutually acceptable maximum amount for Permitted Investments by Borrowers in Guarantors and to the basis for the financial statements described in the ending language to Section 6.3 prior to the Activation Date;
(u) Borrowers shall have delivered to Agent an organizational chart for Borrowers and their Subsidiaries that is true and correct as of the Closing Activation Date,
(v) No material adverse change shall have occurred in Borrowers financial condition or prospects or in the value of the Collateral,
(w) No default or event which, all Portfolio Loans with the giving of notice or passage of time, or both, would be a default shall have occurred and Purchased Participations are owned by Borrower free and clear be continuing under any agreement governing indebtedness of any liens Borrower or encumbrances any other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf material agreement of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ any Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(sx) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Agent.
Appears in 1 contract
Sources: Loan and Security Agreement (Hudson Highland Group Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions extension of credit provided for hereunder on or after the date hereof, is subject to the prior or concurrent fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent Lender (the making of such initial extensions extension of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the following), of each of the following conditions precedent)::
(a) Agent the Restatement Effective Date shall have received a Filing Authorization Letteroccur on or before December 31, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2010;
(b) Agent Borrower shall have received each of the following documentsMidOcean Investment in an aggregate amount which is at least $47,000,000, which shall be used to, among other things, fund the Restatement Date Redemption and to repay the Existing Term Loan in full, along with any outstanding interest and fees;
(c) Lender shall have received the Fee Letter, in form and substance reasonably satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:;
(id) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lender,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower),
(iv) the Disbursement Letter for the initial Advance,
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Loan Pricing Agreement.
(c) Agent shall have received a certificate from an Authorized Person the Secretary of each Loan Party Borrower (i) attesting to the resolutions of such PersonBorrower’s Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
Borrower, and (div) Agent shall have received attaching true and correct copies of the Governing Documents of each Loan Party, as amended, modified, or supplemented to the Closing DateMidOcean Equity Documents, certified by an Authorized Personsuch officer as being true, correct and complete copies thereof as of the Restatement Effective Date;
(e) Agent Lender shall have received a certificate from the Secretary of Borrower stating that the Governing Documents and Investor Rights Agreement received by Lender pursuant to the Original Loan Agreement remain in full force and effect on and as of the Restatement Effective Date without modification or amendment in any respect;
(f) Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Restatement Effective Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent Lender shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Restatement Effective Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received an opinion of counsel to each Loan Party, in form and substance satisfactory to Agent;Borrower’s Restatement Effective Date Business Plan; and
(i) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent shall have received satisfactory evidence (including a certificate of an Authorized Person) that all tax returns required to be filed by each Loan Party have been timely filed and all taxes upon any Loan Party, or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agent;
(l) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretion;
(m) Agent shall have received the Closing Date Business Plan;
(n) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(s) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder).
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions extension of credit provided for hereunder hereunder, is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent Lender (the making of such initial extensions extension of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the following), of each of the following conditions precedent)::
(a) Agent the Closing Date shall occur on or before December 12, 2005;
(b) Lender shall have received a Filing Authorization Letter, duly executed by Borrower and ServicerBorrower, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of AgentLender, desirable to perfect the TrusteeLender’s Liens in and to the Collateral, and Lender shall have received searches reflecting the filing of all such financing statements;
(bc) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderCash Management Agreements,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsControl Agreements,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Intellectual Property Security Agreement,
(iv) the Disbursement Letter for the initial AdvanceLetter,
(v) the Fee LettersLetter,
(vi) the Parent Guaranty,Officers’ Certificate, and
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens)Securities Pledge Agreement, together with such UCC financing statement amendments terminating all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank (or partially releasing such security interests as may be required by Lenderequivalent, andin the case of any non-U.S. Subsidiary whose Stock is pledged);
(ixd) the Loan Pricing Agreement.
(c) Agent Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party Borrower (i) attesting to the resolutions of such PersonBorrower’s Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such PersonBorrower;
(de) Agent Lender shall have received copies of the Borrower’s Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ef) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent Lender shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender;
(i) Lender shall have entered into a satisfactory Intercreditor Agreement with ▇▇▇▇▇ Fargo Bank, National Association;
(j) Lender shall have received Collateral Access Agreements with respect to the following locations: (i) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (Suite 100, Suites 200,300 and 400, Suite 500 and Suite 600), (ii) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, (iii) ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, (iv) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, (v) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, (vi) ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and (vii) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇;
(k) Lender shall have received an opinion of Borrower’s counsel to each Loan Party, in form and substance satisfactory to AgentLender;
(il) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Borrower) that all tax returns required to be filed by each Loan Party Borrower and its Subsidiaries have been timely filed and all taxes upon any Loan Party, Borrower and its Subsidiaries or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(km) Agent Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents;
(n) Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each Borrower’s and its Subsidiaries’ books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsLender, the results of which shall be satisfactory to AgentLender, and (ii) an inspection of each of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be satisfactory to Lender;
(lo) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower’s senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(mp) Agent Lender shall have received an appraisal of the Net Liquidation Value applicable to Borrower’s and its Subsidiaries’ Inventory, the results of which shall be satisfactory to Lender;
(q) A takeover audit shall have been conducted by or on behalf of Lender, the results of which shall be reasonably satisfactory to Lender;
(r) Lender shall have received Uniform Commercial Code, tax lien, and litigation searches, the results of which shall be satisfactory to Lender;
(s) Lender shall have reviewed and shall be satisfied with all material agreements and customer contracts of Borrower, including fulfillment partner agreements;
(t) Lender shall have satisfactorily reconciled Borrower’s projected cash flow statement for 2006 which shall be consistent with the Borrower’s Closing Date Business Plan;
(nu) Lender shall have received Borrower’s Closing Date Business Plan, the results of which shall be satisfactory to Lender;
(v) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(ow) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, Borrower and each of Borrower, Borrower’s its Subsidiaries and Servicer 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 Person Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)thereby; and
(sx) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before February 16, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2001;
(b) Agent Lender shall have received all financing statements required by Lender, duly executed by the applicable Borrowers, and Lender shall have received searches reflecting the filing of all such financing statements;
(c) Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:effect (and filed or recorded, as applicable):
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment an acknowledgment letter regarding the Control Agreement, dated as of December 28, 2000, executed and delivered by Parent, Lender and Well▇ ▇▇▇go Brokerage Services, LLC in connection with the Closing Date and a Transferee Letter from each such LenderDecember 2000 Loan Agreement,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsCopyright Security Agreement,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Disbursement Letter,
(iv) the Disbursement Letter for the initial AdvanceFee Letter,
(v) the Fee LettersCash Management Agreements,
(vi) the Parent GuarantyPatent Security Agreement,
(vii) the Perfection CertificateStock Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, andTrademark Security Agreement,
(ix) the Loan Pricing Buyer Note, endorsed to Lender,
(x) the Collateral Assignment,
(xi) the Cash Collateral Agreement,
(xii) a certificate from the Secretary of Parent attaching true and correct copies of the Purchase Documents (other than the Purchase Documents to be executed subsequent to the date hereof),
(xiii) the consummation of the Sale Transaction, to the satisfaction of Lender in its Permitted Discretion, and
(xiv) the Acknowledgement and Asset Segregation Letter.
(cd) Agent Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent Lender shall have received copies of the each Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of such Borrower;
(ef) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent Lender shall have received certificates of status with respect to each Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of such Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that such Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received an opinion opinions of Borrowers' counsel to and a reliance letter in favor of Lender in respect of Buyer's counsel's opinion, each Loan Party, in form and substance (including such Buyer's counsel's opinion) satisfactory to AgentLender;
(i) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Parent) that all tax returns required to be filed by each Loan Party Borrowers have been timely filed and all taxes upon any Loan Party, Borrowers or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(j) Borrowers shall have the Required Availability and be in compliance with Section 2.1(e) after giving effect to the initial extensions of credit hereunder;
(k) Agent Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each of Borrower’s, Servicer’s, Borrowers' books and Borrower’s Subsidiaries’ Books, a review of Servicer’s records and Borrower’s collateral valuation methods, verification of each of Loan Party’s Borrowers' representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsLender, the results of which shall be satisfactory to AgentLender, (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Lender, (iii) satisfactory legal review of contracts with Borrowers' major customers, and (iv) satisfactory legal review of the Purchase Documents and the transactions contemplated thereby;
(l) Agent Borrowers shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretion;
(m) Agent shall have received the Closing Date Business Plan;
(n) Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this December 2000 Loan Agreement, in each case, to the extent then due and payable;
(om) Other than Borrower shall pay all fees due and owing under or in connection with respect to qualifications to conduct business in jurisdictions the December 2000 Loan Agreement including any fees owing under the December 2000 Fee Agreement,
(other than such Person’s jurisdiction of organizationn) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Borrowers 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 Person Borrowers of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its businessthereby;
(po) Agent Borrowers shall have received evidence, in form and substance satisfactory to Agent, of funded the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit Cash Collateral Reserve in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf 58% of the DZ Secured Parties, undrawn amount of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as Existing Underlying Acceptable Purchase Order Letters of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified thereinCredit, and (ii) that certain Assignment Agreement, dated as 100% of the date hereof, by and between Servicer and undrawn amount of the DZ Borrower, whereby Existing Standby Underlying Letters of Credit.
(p) the DZ Borrower assigned, conveyedissuance to, and transferred receipt by Lender of, the Back to Servicer, all Back Standby Letter of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)Credit; and
(sq) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before November __, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2000;
(b) Agent Lender shall have received (i) all financing statements required by Lender, duly executed by the applicable Borrowers, and Lender shall have received searches reflecting the filing of all such financing statements, and (ii) all amendments to such of the financing statements previously filed against any Borrower, as debtor, as Lender may require;
(c) Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderControl Agreements,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsDisbursement Letter,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Due Diligence Letter,
(iv) the Disbursement Letter for the initial AdvanceFee Letter,
(v) the Fee LettersCash Management Agreements,
(vi) the Parent GuarantyOfficers' Certificate,
(vii) the Perfection CertificateStock Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, andTrademark Security Agreement,
(ix) the Loan Pricing Intercompany Subordination Agreement.,
(cx) Agent the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrowers,
(xi) the Contribution Agreement,
(xii) the Warrant,
(xiii) the Registration Rights Agreement,
(xiv) the Equipment Provider Letters,
(d) Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent Lender shall have received copies of the each Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of such Borrower;
(ef) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 45 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent Lender shall have received certificates of status with respect to each Borrower, each dated within 30 45 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of such Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that such Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received an opinion a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender;
(i) Lender shall have received such Collateral Access Agreements with respect to such of the Borrowers' and Canadian Obligors' facilities as Lender may require.
(j) Lender shall have received opinions of Borrowers' counsel to each Loan Party, in form and substance satisfactory to AgentLender;
(ik) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Parent) that all tax returns required to be filed by each Loan Party Borrowers have been timely filed and all taxes upon any Loan Party, Borrowers or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(kl) Agent Borrowers shall have the Required Availability after giving effect to any initial extensions of credit hereunder;
(m) Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each of Borrower’s, Servicer’s, Borrowers' books and Borrower’s Subsidiaries’ Books, a review of Servicer’s records and Borrower’s collateral valuation methods, verification of each of Loan Party’s Borrowers' representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsLender, the results of which shall be satisfactory to AgentLender, and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Lender;
(ln) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrowers' senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(mo) Agent Lender shall have received the Borrowers' Closing Date Business Plan;
(np) Borrower Borrowers shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(oq) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Borrowers 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 Person Borrowers of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)thereby; and
(sr) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Term Loans (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before March 11, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2002;
(b) Agent Lender shall have received all financing statements required by Lender, duly executed by Borrower, and Lender shall have received searches reflecting the filing of all such financing statements;
(c) Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderAccount Control Agreements,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsCopyright Security Agreement,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Disbursement Letter,
(iv) the Disbursement Letter for the initial AdvanceDue Diligence Letter,
(v) the Fee LettersLetter,
(vi) the Parent GuarantyOfficers' Certificate,
(vii) the Perfection CertificatePatent Security Agreement,
(viii) the Pay-Off Letter, including an agreement to prepare and file UCC termination statements, mortgage releases and terminations other documentation evidencing the termination by Existing Lender of all security interests, liens its Liens in and encumbrances on to the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, andproperties and assets of Borrower upon receipt of the pay-off funds,
(ix) the Loan Pricing Trademark Security Agreement., and
(cx) Agent the Mortgage with respect to the Atlanta Property;
(d) Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent Lender shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ef) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent Lender shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received an opinion a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender;
(i) Lender shall have received Collateral Access Agreements with respect to the following locations: (1) 6660 Dixie Highway, Suite 304, Fairfield, OH; (2) Inverness 44, 4▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Parkway, Birmingham, AL; (3) 25 16th Street, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇; ▇▇▇ (▇) ▇▇▇ ▇▇▇▇ France ▇▇▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇;
(▇) ▇▇▇▇▇▇ ▇▇▇▇▇ have received opinions of Borrower's counsel (including opinions relating to each Loan Party, the Mortgage with respect to the Atlanta Property) in form and substance satisfactory to AgentLender;
(ik) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Borrower, certifying as to the best of his knowledge) that all tax returns required to be filed by each Loan Party Borrower have been timely filed and all taxes upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are set forth on Schedule A to such certificate or that are the subject of a Permitted Protest;
(kl) Agent Borrower shall have the Required Availability;
(m) Lender shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each Borrower's books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s 's representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsLender, the results of which shall be satisfactory to AgentLender;
(ln) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower's senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(mo) Agent Lender shall have received an appraisal of Borrower's Recurring Service & Maintenance Revenues, the results of which shall be satisfactory to Lender;
(p) Lender shall have received Borrower's Closing Date Business Plan;
(nq) Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement Agreement;
(r) no injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the extending of such credit shall have been issued and remain in force by any Governmental Authority against Borrower, Lender, or any of their Affiliates;
(s) Borrower, at its own cost and expense, shall have filed applications and taken any and all fees payable other actions reasonably necessary to register all material Copyrights (including, without limitation, Borrower's top ten (10) Copyrights measured by annual revenue generated therefrom and all other Copyrights which generate or are reasonably expected to generate at least $2,000,000 in annual revenue), in good faith in accordance with the Fee Letters procedures and this Agreement, in each case, to regulations of the extent then due and payableU.S. Copyright Office;
(ot) Other than Lender shall have received from Borrower certificates of registration from the U.S. Copyright Office, or such other evidence of registration satisfactory to Lender, to demonstrate compliance with respect to qualifications to conduct business in jurisdictions Section 3.1(s);
(other than such Person’s jurisdiction of organizationu) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Borrower 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 Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for hereby and thereby;
(v) Lender shall have received, to its satisfaction, true and complete copies of each of the conduct of their respective businesses as contemplated by this Agreement and Agent NDC Agreements (which agreements have not been amended since the dates thereof);
(w) Lender shall have received evidence(i) a mortgagee title insurance policy (or marked commitments to issue the same) (the "Mortgage Policy") for the Atlanta Property issued by a title insurance company satisfactory to Lender (the "Title Company") in an amount satisfactory to Lender assuring Lender that the Mortgage on such Real Property Collateral is a valid and enforceable first priority mortgage Lien on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policy otherwise shall be in form and substance satisfactory to AgentLender; (ii) an as-built survey of recent date with respect to the Atlanta Property, that Servicer holds a currently effective California showing such matters as may be required by Lender’s Finance Licenses authorizing it , certified to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust AccountTitle Company, and the perfection surveyors retained for such survey, the scope of the Trustee’s Liens;
survey, and the results thereof shall be acceptable to Lender; and (qiii) Agent copies of permanent and unconditional certificates of occupancy (or, if it is not the practice to issue certificates of occupancy in the jurisdiction in which the facilities to be covered by the Mortgage are located, then such other evidence reasonably satisfactory to Lender) permitting the fully functioning operation and occupancy of each such facility and of such other permits necessary for the use and operation of each such facility issued by the respective governmental authorities having jurisdiction over each such facility. In addition, Borrower shall have received an irrevocable initial request for an Advance or paid to the Title Company all expenses and premiums of the Title Company in connection with the issuance of Letters of Credit the Mortgage Policy and in addition shall have paid to the Title Company an aggregate amount equal to or greater than $25,000,000;
(r) Agent the recording and stamp taxes payable in connection with recording the Mortgage in the appropriate county land offices; and Borrower shall have received evidence, in form paid to the surveyors all fees and substance satisfactory to Agent, that as expenses of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) surveyors in connection with the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)survey; and
(sx) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before September 4, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2002;
(b) Agent Lender shall have received all financing statements required by Lender, duly authorized by Borrower, and Lender shall have received searches reflecting the filing of all such financing statements;
(c) Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderCash Management Agreements,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsControl Agreements,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Copyright Security Agreement,
(iv) the Disbursement Letter for the initial AdvanceLetter,
(v) the Fee LettersDue Diligence Letter,
(vi) the Parent GuarantyFee Letter,
(vii) the Perfection CertificateGuaranty,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, andGuarantor Security Agreement,
(ix) the Loan Pricing Intercompany Subordination Agreement.,
(cx) Agent the Officers’ Certificate,
(xi) the Patent Security Agreement,
(xii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower,
(xiii) the Securities Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, and the Pledged Notes,
(xiv) the Trademark Security Agreement,
(xv) the MCI Agreement, and
(xvi) the PNC Forbearance;
(d) Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party Borrower (i) attesting to the resolutions of such PersonBorrower’s Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, same and (iiiii) attesting to certifying the incumbency names and true signatures of such specific the officers of Borrower authorized to sign each such PersonLoan Document;
(de) Agent Lender shall have received copies of the Borrower’s Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ef) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent Lender shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictions;
(h) Lender shall have received a certificate from the Secretary of each Guarantor (i) attesting to the resolutions of such Guarantor’s board of directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same and (ii) certifying the names and true signatures of the officers of such Guarantor authorized to sign each such Loan Document;
(i) Lender shall have received copies of each Guarantor’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Lender shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(gk) [INTENTIONALLY OMITTED]Lender shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(hl) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender;
(m) Lender shall have received a Collateral Access Agreement with respect to the following location: 1▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
(n) Lender shall have received an opinion of Borrower’s counsel to each Loan Party, in form and substance satisfactory to AgentLender;
(io) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Borrower) that all tax returns required to be filed by each Loan Party Borrower have been timely filed and all taxes upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(kp) Agent Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each Borrower’s books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to AgentLender, and audit (ii) an inspection of each of the locations where Borrower’s Inventory is located, and Servicer(iii) review of Borrower’s systems and controlscustomer contracts, the results of each of which shall be satisfactory to AgentLender;
(lr) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower’s senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(ms) Agent Lender shall have received the Borrower’s Closing Date Business Plan;
(nt) Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(ou) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Borrower 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 Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent thereby;
(v) Lender shall have received evidenceBorrower’s quarterly report on Form 10-Q as filed with the SEC for the period ended June 30, in form 2002, and substance satisfactory such report shall be consistent with the pro forma quarterly report Borrower previously provided to AgentLender, that Servicer holds a currently effective California except for such adjustments as have been previously disclosed to Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(pw) Agent Lender shall have received evidencebe satisfied with the takeover audit, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent which shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent include but shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, not be limited to: (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf review of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Groupoutstanding check detail, in each case, upon receipt by particular the DZ Trustee determination of the payoff amount specified thereinany held checks, and (ii) verification that certain Assignment Agreementpayroll taxes are current;
(x) Borrower shall have on the Closing Date remitted by wire transfer to Lender’s Account all cash (and delivered all Cash Equivalents in such manner as directed by Lender) of Borrower utilized to calculate the Required Availability;
(y) Borrower shall have delivered to Lender evidence, satisfactory to Lender in its sole discretion, that Borrower provided notice to AT&T Corp. in connection with the agreement dated as of August 1, 2000, as amended, between Borrower and AT&T Corp;
(z) Borrower shall have on the date hereof, by Closing Date requested and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred borrowed an Advance in an amount equal to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)at least $5,000,000; and
(saa) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the its initial extensions extension of credit provided for hereunder is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions extension of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):
(a) Agent The Confirmation Order shall be entered and in full force and effect and shall not have received been appealed, stayed, reversed, vacated or otherwise modified (or subject to a Filing Authorization Letter, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in motion seeking any of the opinion foregoing) without the consent of Agent, desirable to perfect the Trustee’s Liens in and to the CollateralRequired Lenders;
(b) All documents executed in connection with the implementation of the Plan of Reorganization shall be in accordance with the Plan of Reorganization and in form and substance reasonably satisfactory Agent and Required Lenders, the Effective Date of the Plan of Reorganization shall have occurred, and the Plan of Reorganization shall have been substantially consummated;
(c) Agent and the Lenders shall have received each of the following documentsdocuments (originals or telecopies (followed promptly by originals)), in form and substance satisfactory to Agentthe Agent and the Required Lenders, duly executedexecuted and delivered, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lender,this Agreement;
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,Security Agreement;
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower),Subsidiary Guaranty;
(iv) any Real Property Agreements requested by the Disbursement Letter for the initial Advance,Lenders;
(v) any Intellectual Property Security Agreements requested by the Fee Letters,Lenders; and
(vi) any other agreements requested by the Parent Guaranty,Lenders.
(viid) Agent and the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with Lenders shall have received evidence that appropriate financing statements have been duly filed in such UCC financing statement amendments terminating office or partially releasing such security interests offices as may be required by Lendernecessary or, andin the reasonable opinion of Agent, desirable to perfect the Agent’s Liens in and to the Collateral, and all Liens created pursuant to the Loan Documents shall have been duly perfected and registered in all relevant jurisdictions;
(ixe) Except as otherwise provided in the Plan of Reorganization, all Indebtedness of the Loan Pricing Agreement.Parties shall have been discharged or subordinated to the Indebtedness to the Lenders under this Agreement on terms and conditions satisfactory to Required Lenders;
(cf) The Agent and the Lenders shall have received all requested financial information regarding the Loan Parties in form, scope and substance acceptable to Agent and the Required Lenders;
(g) Agent and the Lenders shall have received a certificate from an Authorized Person of each the Loan Party Parties (i) attesting to the resolutions of such PersonLoan Party’s Board of Directors Managers authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person it is a party, (ii) party and authorizing specific officers of such Person Loan Party to execute the same, and (iiiii) attesting to the incumbency and signatures of such specific officers the officer(s) of such PersonLoan Party;
(dh) Agent and the Lenders shall have received copies of the Governing Documents of each Loan Party’s Governing Documents, as amended, modified, or supplemented to under the Closing DatePlan of Reorganization, which Governing Documents shall be (i) certified by an Authorized Personofficer or corporate secretary of such Loan Party, and (ii) with respect to Governing Documents that are charter documents, certified as of a recent date (not more than 30 days prior to the Effective Date) by the appropriate governmental official;
(ei) Agent and the Lenders shall have received a certificate of status with respect from the Borrower’s insurance broker or other evidence satisfactory to each Loan Party, each dated within 10 days of the Closing Date, such certificate it that all insurance required to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate that such Person maintained pursuant to Section 5.7 is in good standing in such jurisdictionfull force and effect, together with endorsements naming the Agent as additional insured and loss payee thereunder;
(f) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction (other than such Person’s jurisdiction of organization) in which Borrower’s failure to be duly qualified or licensed would cause a Material Adverse Effect, which certificates shall indicate that Borrower is in good standing in such other jurisdiction;
(gj) [INTENTIONALLY OMITTED]
(h) Agent and the Lenders shall have received an opinion of the Loan Parties’ counsel as to each Loan Partysuch matters as Agent may reasonably require, dated as of the Closing Date and in form and substance satisfactory to Agent;
(i) Agent shall have received and the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent shall have received satisfactory evidence (including a certificate of an Authorized Person) that all tax returns required to be filed by each Loan Party have been timely filed and all taxes upon any Loan Party, or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted ProtestLenders];
(k) Agent shall have completed its business, legal, financial and collateral legal due diligencediligence of the Loan Parties, including but not limited to (i) review of material agreements, (ii) a collateral audit and review of each of Borrower’saudit, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agent;
(liii) Agent shall have received completed reference checks (including personal credit reportsUCC, tax lien and litigation historiessearches, and (iv) with respect to the Loan Parties and each of the Executive Officers and of specified officers review of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Parties’ books and ▇▇▇▇▇ ▇▇▇▇▇)records, the results of which are satisfactory to the Agent in its sole discretionand Lenders;
(ml) Agent shall have received the Closing Date Business Plan;
(n) The Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and the other Loan Documents;
(m) Each Loan Party shall have received all fees payable governmental and third party approvals (including shareholder approvals and other consents) necessary or, in accordance the reasonable opinion of the Required Lenders, advisable in connection with the Fee Letters and this Agreement, the transactions contemplated by the Loan Documents, which shall all be in each casefull force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on this Agreement, the transactions contemplated by the Loan Documents; and
(n) Nothing shall have occurred (and neither the Agent nor the Lenders shall have become aware of any facts or conditions not previously known) which the Agent or the Lenders shall reasonably determine has had, or could reasonably be expected to the extent then due and payablehave, a Material Adverse Effect;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(s) all All other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to and the initial Advance hereunder Plan of Reorganization shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (and the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Required Lenders.
Appears in 1 contract
Sources: Credit Agreement
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the its initial extensions extension of credit provided for hereunder hereunder, is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent)::
(a) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and ServicerBorrower, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the TrusteeAgent’s Liens in and to the Collateral, and Agent shall have received searches reflecting the filing of all such financing statements;
(b) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderNotes,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsCertificates,
(iii) the Control Agreements with respect to all each Deposit Accounts Account and Securities Accounts maintained by, or for Account of the benefit of, Borrower (or Servicer, for the account of Borrower),
(iv) the Disbursement Letter for the initial AdvanceFee Letter,
(v) the Fee LettersSale and Servicing Agreement,
(vi) the Parent GuarantyCollateral Custodian Fee Letter,
(vii) the Perfection CertificateBack-Up Servicer Engagement Letter,
(viii) releases a Collateral Access Agreement with respect to the principal location(s) where Horizon and terminations of all security interests, liens Borrower maintain the Books relating to the Notes Receivable and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by LenderCollateral, and
(ix) a file-stamped copy of a UCC-1 financing statement naming Horizon as seller and Borrower as buyer, filed with the Loan Pricing Delaware Secretary of State to perfect the transfer and sale of Notes Receivable to Borrower from time to time pursuant to the Sale and Servicing Agreement.
(c) Agent shall have received a perfection certificate from with respect to Horizon, Horizon Management and Borrower, duly executed by an Authorized Person Officer of each Loan Party (i) attesting to the resolutions of such Person’s Board of Directors authorizing the executionHorizon, deliveryHorizon Management and Borrower, and performance of this Agreement and the other Loan Documents to which such Person is a party, (ii) authorizing specific officers of such Person to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(d) Agent shall have received copies the results of a recent lien search in each of the Governing Documents jurisdictions indicated on such perfection certificate, and such search shall reveal no liens on any of each Loan Party, as amended, modified, the assets of Borrower except for liens permitted by Section 7.2 or supplemented discharged on or prior to the Closing Date, certified by an Authorized Person;
(e) Agent shall have received Date pursuant to a certificate of status with respect to each Loan Party, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate that such Person is in good standing in such jurisdiction;
(f) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction (pay-off letter or other than such Person’s jurisdiction of organization) in which Borrower’s failure to be duly qualified or licensed would cause a Material Adverse Effect, which certificates shall indicate that Borrower is in good standing in such other jurisdiction;
(g) [INTENTIONALLY OMITTED]
(h) Agent shall have received an opinion of counsel to each Loan Party, in form and substance documentation satisfactory to Agent;
(i) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent shall have received satisfactory evidence (including a certificate of an Authorized Person) that all tax returns required to be filed by each Loan Party have been timely filed and all taxes upon any Loan Party, or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agent;
(l) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretion;
(m) Agent shall have received the Closing Date Business Plan;
(n) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(s) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder).
Appears in 1 contract
Sources: Loan and Security Agreement (Horizon Technology Finance Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of each the Lender Group (or any member thereof) to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent and each LenderAgent, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before December 15, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral1999;
(b) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lender,this Agreement;
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,Disbursement Letter;
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower),Pay-Off Letter;
(iv) the Disbursement Letter for the initial Advance,Stock Pledge Agreement;
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Loan Pricing Suretyship Agreement.;
(c) Agent shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(d) Agent shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(e) Agent shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(f) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction (other than such Person’s jurisdiction of organization) the jurisdictions in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by SECTION 6.9, the form and substance of which shall be satisfactory to Agent and its counsel;
(h) Agent shall have received an opinion the certified copies of counsel to each Loan Partythe policies of insurance, in together with the endorsements thereto, as are required by SECTION 6.9, the form and substance of which shall be satisfactory to AgentAgent and its counsel;
(i) Agent shall have received the Approved Forms such Collateral Access Agreements from lessors, warehousemen, bailees, and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached other third persons as exhibits to the Closing CertificateAgent may reasonably require;
(j) Agent shall have received an opinion of Borrower's counsel in form and substance satisfactory to Agent in its Permitted Discretion;
(k) Agent shall have received satisfactory evidence (including a certificate of an Authorized Person) that all tax returns required to be filed by each Loan Party Borrower have been timely filed and all taxes upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, real property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agent;
(l) Agent shall have received completed reference checks (including personal credit reportsall financing statements required by Agent, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretionduly executed by Borrower;
(m) Agent shall have received the Closing Date Business Plan;
(n) Borrower shall have paid pay all Lender Group Expenses incurred by Agent or any other Lender in connection with the transactions evidenced by this Agreement entry of Agent and all fees payable in accordance with the Fee Letters and Lenders into this Agreement, in each case, to the extent then due and payable;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(sn) all other documents and legal matters in connection with the transactions contemplated by this Agreement deemed to be completed prior to the initial Advance hereunder necessary in Agent's sole discretion, reasonably exercised, shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)its counsel.
Appears in 1 contract
Sources: Loan and Security Agreement (Phonetel Technologies Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent All financing statements required by Lender, shall have received a Filing Authorization Letter, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateralbeen filed;
(b) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lender,Intellectual Property Security Agreement;
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,All Control Agreements and/or Cash Management Agreements;
(iii) Control Agreements the Credit Card/Payment Agreement with respect to all Deposit Accounts and Securities Accounts maintained byTransFirst, or for the benefit of, Borrower (or Servicer, for the account of Borrower),Inc.;
(iv) the Disbursement Letter for the initial Advance,Fee Letter;
(v) the Fee LettersDisbursement Letter,
(vi) the Parent Guaranty,Perfection Certificate of each Borrower;
(vii) the Perfection Certificate,Certificate of Officers of each Borrower;
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, andSignature Authorization;
(ix) the Loan Pricing AgreementWaiver Letter; and
(x) Assignment of Services Contracts and Consent of Assignor.
(c) Agent Lender shall have received evidence of delivery of all required transfer forms and/or notices to American Express, Chase Paymentech, Discover Network and PayPal relating to payment of proceeds of Inventory sales directly to the Concentration Account;
(d) Lender shall have received evidence that any and all of Borrower’s deposit accounts with Bank of the West have been closed and terminated;
(e) Lender shall have received Collateral Access Agreements with respect to any of the leased Borrower’s distribution center locations;
(f) Lender shall have received Bailee Acknowledgments with respect to any of the Borrower’s third party warehouse locations;
(g) Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such PersonBorrower’s Board board of Directors directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(dh) Agent Lender shall have received copies of the Borrower’s Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ei) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fj) Agent Lender shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictionjurisdictions;
(gk) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received an opinion certificates of insurance, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender;
(l) Lender shall have received opinions of Borrower’s counsel to each Loan Party, in form and substance satisfactory to AgentLender;
(im) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Parent) that all tax returns required to be filed by each Loan Party Borrower have been timely filed and all taxes upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted ProtestProtests;
(kn) Agent Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each Borrower’s books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsthe Lender, the results of which shall be satisfactory to AgentLender, and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Lender;
(lo) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to Borrower’s management and the Loan Parties and each holders of any Stock of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower, the results of which are satisfactory to Agent Lender in its sole discretion;
(mp) Agent Lender shall have received an appraisal of the Net Retail Liquidation Value and Net Liquidation Percentage applicable to Borrower’s Inventory, the results of which shall be satisfactory to Lender;
(q) Lender shall have received the Closing Date Business Plan;
(nr) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(os) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction Lender shall have received copies of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrowerthe Service Contracts, Borrower’s Subsidiaries together with a certificate of the Secretary of the applicable Borrower certifying each such document as being a true, correct, and Servicer complete copy thereof;
(t) Borrower 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 Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its businessthereby;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(su) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent Lender; and
(v) Lender shall have received, reviewed and approved Borrower’s plan to resolve pending litigation regarding the approval authenticity of Agent of such documents Inventory bearing the “Cartier” trade name and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)trademark.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before February 23, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2001;
(b) Agent Lender shall have received all financing statements required by Lender, duly executed by Borrower, and Lender shall have received searches reflecting the filing of all such financing statements;
(c) Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderFee Letter,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsMortgages,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account Subordination of Borrower)Mortgage,
(iv) the Disbursement Letter for the initial AdvanceSurvey Affidavit/Indemnification,
(v) the Fee LettersOfficers' Certificate,
(vi) the Parent GuarantyTrademark Security Agreement,
(vii) the Perfection CertificateDiamond Jo Ship Mortgage,
(viii) releases and terminations the Subordination of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by LenderPr▇▇▇▇▇▇▇ ▇▇eet Mortgage, and
(ix) the Loan Pricing Intercreditor Agreement.
(cd) Agent Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Board of Directors Borrower's Manager authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent Lender shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ef) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent Lender shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender;
(i) Lender shall have received an opinion of counsel to each Loan PartyBorrower's counsel, in form and substance satisfactory to Agent;
(i) Agent shall have received the Approved Forms and Required ProceduresLender in its Permitted Discretion, all in form and substance satisfactory such opinion to Agent, which shall also be attached include an opinion as exhibits to the Closing Certificatedue issuance and valid existence of Borrower's Gaming Licenses;
(j) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Borrower) that all tax returns required to be filed by each Loan Party Borrower have been timely filed and all taxes upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each Borrower's books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s 's representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsLender, the results of which shall be satisfactory to AgentLender, and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Lender;
(l) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower's senior management, the results of which are satisfactory to Agent Lender in its sole discretionPermitted Discretion;
(m) Agent Lender shall have received from an independent third party professional selected by Lender, an evaluation of the enterprise value of Borrower's Ice Harbor Facility, the results of which shall be satisfactory to Lender;
(n) Lender shall have received Borrower's Closing Date Business Plan;
(no) Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(op) Other than with respect Lender shall have received mortgagee title insurance policies (or marked commitments to qualifications issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to conduct business in jurisdictions Lender (other than such Person’s jurisdiction of organizationeach a "Mortgage Policy" and, collectively, the "Mortgage Policies") in which amounts reasonably satisfactory to Lender assuring Lender that, after giving effect to the Intercreditor Agreement, the Mortgages on such Person’s failure Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance reasonably satisfactory to be duly qualified or licensed would not cause a Material Adverse Effect, Lender;
(q) Lender shall have received copies of each of Borrowerthe following documents, Borrower’s Subsidiaries together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and Servicer complete copy thereof: (i) the Senior Note Documents, (ii) the Operating Agreement, (iii) the Lease, (iv) the Ice Harbor Parking Agreement, (v) the Consulting Agreements, and (vi) the Certificate of Designation;
(r) Borrower shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority Authority, including the Gaming Commission, in connection with the execution and delivery by such Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for hereby and thereby;
(s) the conduct Diamond Jo Ship Mortgage shall have been recorded in the applicable ▇▇▇▇▇▇ ▇ffice of their respective businesses the United States Coast Guard and such other governmental agency as contemplated by this Agreement shall be necessary, and Agent Lender shall have received evidenceconfirmation, in form and substance satisfactory to AgentLender, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its businessof such recordation;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(st) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent Lender; and
(u) Borrower shall have the approval of Agent of such documents and legal matters under this Section 3.1(v) Required Availability after giving effect to be evidenced by the initial Advance or initial issuance extensions of a Letter of Credit credit hereunder).
Appears in 1 contract
Sources: Loan and Security Agreement (Peninsula Gaming Co LLC)
Conditions Precedent to the Initial Extension of Credit. The obligation of each the Lender Group (or any member thereof) to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lenderin its Permitted Discretion, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver set forth below; provided that, if all of the conditions precedent):set forth in this Section 3.2 are not satisfied as determined by Agent in its Permitted Discretion, on or before the date that is 90 days after the Closing Date, then this Agreement and the other Loan Documents shall be automatically terminated and the Lender Group shall have no further obligations of any kind hereunder or thereunder:
(a) the Activation Date shall occur on or before the date occurring ninety (90) days after the Closing Date;
(b) Each of the conditions set forth in Section 3.1 shall have been and continue at all times to be satisfied and Agent shall have received a certificate of the chief executive officer of Parent dated as of the Activation Date stating the same;
(c) Agent shall have completed a takeover audit of Borrowers by the Activation Date, the results of which shall be satisfactory to Agent in its Permitted Discretion.
(d) Agent shall have received a Filing Authorization Letterall financing statements required by Agent, duly executed authorized for filing by Borrower the applicable Guarantors, and Servicer, together with appropriate Agent shall have received searches reflecting the filing of all such financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateralstatements;
(be) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executedexecuted or authorized to be filed, as appropriate, and each such document shall be in full force and effect:
(i) a Revolving Credit Note the Stock Pledge Agreements, together with all certificates representing the shares of Stock pledged thereunder for each Lender listing a principal sum equal to such Lender’s Commitment Material Subsidiary of any Borrower except as of the Closing Date and a Transferee Letter from each such Lenderprovided in Section 6.17, as well as Stock powers with respect thereto endorsed in blank,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsTrademark Security Agreements,
(iii) Control Agreements the Share Mortgage together with all share certificates and executed transfers in blank in respect to of all Deposit Accounts shares charged by it and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Guarantee and Debenture,
(iv) the Disbursement Letter for the initial AdvanceControl Agreements,
(v) the Fee LettersCash Management Agreements together with verifications of the balances of the Cash Management Accounts subject thereto as of the day prior to the Activation Date, it being acknowledged and agreed by Borrowers that, as an additional condition to the day prior to the Activation Date, as of the Activation Date not less that $15,000,000 of Borrowers' cash shall be subject to Control Agreements (including Cash Management Agreements),
(vi) UCC termination statements and other documentation evidencing the Parent Guarantytermination by any prior secured parties of their respective Liens in and to the properties and assets of Borrowers and each Guarantor,
(vii) the Perfection CertificateGuaranties and the Subsidiary Documents,
(viii) releases Collateral Access Agreements from all lessors of Real Property where any Borrower maintains its Chief Executive Office and terminations of all security interests, liens Equipment maintaining Books and encumbrances on the Collateral Records or keeps its Books and Records for its business or operations (other than Permitted LiensHH UK), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender,
(ix) Collateral Access Agreements in favor of Agent from all of Borrowers' information technology lessors,
(x) the Australian Security Documents, and
(ixxi) the Loan Pricing Agreement.Canadian Security Documents;
(cf) Agent shall have received completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(g) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Agent;
(h) Agent shall have received a certificate from an Authorized Person the Secretary or Assistant Secretary of each Loan Party (i) Guarantor attesting to the resolutions of such Person’s Guarantor's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Guarantor is a party, (ii) party and authorizing specific officers of such Person Guarantor to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(di) Agent shall have received copies of the each Guarantor's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Activation Date, certified by an Authorized Personthe Secretary or Assistant Secretary of such Guarantor;
(ej) Agent shall have received a certificate of status with respect to each Loan PartyGuarantor, each dated within 10 days of the Closing Activation Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonGuarantor, which certificate shall indicate that such Person Guarantor is in good standing in such jurisdiction;
(fk) Agent shall have received certificates of status with respect to Borrowereach Guarantor, each dated within 30 days of the Closing Activation Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of such Guarantor) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower such Guarantor is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(hl) Agent shall have received an opinion additional opinions of counsel to each Loan PartyBorrowers (including, without limitation, HH Australia and HH Canada) and Guarantors pertaining to such matters as Agent may determine as of the Activation Date, in form and substance satisfactory to Agent;
(im) Agent Borrowers shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached Availability as exhibits of the Activation Date after giving effect to the Closing Certificate;
(j) Agent shall have received satisfactory evidence (including a certificate payment of an Authorized Person) that all tax returns required to be filed by each Loan Party have been timely filed costs, fees and all taxes upon any Loan Party, or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent shall have completed its business, legal, and collateral expenses then due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agent;
(l) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretion;
(m) Agent shall have received and/or any Lender hereunder or under the Closing Date Business Planother Loan Documents and the contemplated initial Advances hereunder;
(n) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreementdeliver to Agent, in each caseform and content satisfactory to Agent, an opening balance sheet as of the effective date of the Spin-Off, reviewed by an independent certified public accountant and in form and content satisfactory to Agent in its Permitted Discretion, together with evidence satisfactory to Agent in its Permitted Discretion that Borrowers and their Subsidiaries have had available cash and Cash Equivalents in an aggregate amount not less than $40,000,000 at some time prior to the extent then due and payableActivation Date;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidenceUCC, tax lien, and judgment searches for all domestic jurisdictions (and the non-domestic equivalents of such searches including, without limitation, the PPSA except as provided in form Section 3.5(c)) in which Borrower and substance each Guarantor and Collateral may be located, the results of which searches show the recording of Agent's security interests and otherwise shall be satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans Agent in California and to conduct its businessPermitted Discretion;
(p) Agent The TMP Loan Agreement and the Security Agreement between Parent and TMP entered into in contemplation of the Spin-Off shall have received evidencebeen terminated, all obligations to TMP thereunder shall have been indefeasibly paid and satisfied in form full and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liensall liens granted thereunder shall have been terminated;
(q) Agent Borrowers shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit executed and delivered all documents required by Agent and shall have satisfied all other conditions established by Agent in an aggregate amount equal its Permitted Discretion to or greater than $25,000,000cause HH Australia and HH Canada to become Borrowers hereunder;
(r) Agent shall have received evidence, in form and substance reviewed all of Borrowers' material contracts including without limitation all seller notes payable by a Borrower or any of its Subsidiaries and the results of such review shall be satisfactory to Agent, that Agent in its Permitted Discretion;
(s) Agent shall have received the Consolidation Plan certified by an officer of Parent as true and correct as of the Closing Activation Date, all Portfolio Loans ;
(t) Borrowers shall have delivered to Agent an organizational chart for Borrowers and Purchased Participations are owned by Borrower free their Subsidiaries that is true and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower correct as of the Closing Activation Date, and ,
(Bu) No material adverse change shall have occurred in Borrowers' financial condition or prospects or in the agreement by the DZ Trustee to deliver possession value of the Portfolio Loan Documents evidencing Collateral,
(v) No default or event which, with the Portfolio Loans giving of notice or passage of time, or both, would be a default shall have occurred and Purchased Participations owned by be continuing under any agreement governing indebtedness of any Borrower as or any other material agreement of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ any Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(sw) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Agent.
Appears in 1 contract
Sources: Loan and Security Agreement (Hudson Highland Group Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before June 14, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2002;
(b) Agent Lender shall have received all financing statements required by Lender and Lender shall have received searches reflecting the filing of all such financing statements;
(c) Lender shall have received each of the following documents, in form and substance reasonably satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderIntercreditor Agreement,
(ii) the Closing CertificateDisbursement Letter, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsif applicable,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Subsidiary Security Agreements,
(iv) the Disbursement Letter for the initial Advancea Guaranty by each Guarantor,
(v) the Fee LettersAcknowledgement,
(vi) the Parent GuarantyIntellectual Property Security Agreement,
(vii) the Perfection Certificate,Stock Pledge Agreement, and
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as any additional documents which may be reasonably required by Lender, and;
(ixd) the Loan Pricing Agreement.
(c) Agent Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent Lender shall have received a certificate from the Secretary of Borrower or an Authorized Person certifying that:
(i) the representations and warranties of Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(ii) there does not exist any condition or event that constitutes a Material Adverse Change, Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrower has taken, is taking, or proposes to take with respect thereto).
(f) Lender shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(eg) Agent Lender shall have received an opinion from counsel to the Borrower and Guarantors substantially in the form annexed hereto as Exhibit A;
(h) Lender shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which Guarantor is a party and authorizing specific officers of Guarantor to execute the same;
(i) Lender shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Except as provided, in Section 3.2(e), Lender shall have received a certificate of status with respect to each Loan PartyGuarantor, each dated within 10 30 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonGuarantor, which certificate shall indicate that such Person Guarantor is in good standing in such jurisdictionjurisdiction together with a written confirmation of such good standing dated within 10 days of the Closing Date;
(fk) Agent Except as provided in Section 3.2(e), Lender shall have received certificates of status with respect to Borrowereach Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Guarantor) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower Guarantor is in good standing in such other jurisdictionjurisdictions;
(gl) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received an opinion a certificate of counsel to each Loan Partyinsurance, in together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be reasonably satisfactory to AgentLender;
(im) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Personthe president or chief financial officer of Borrower) that all material tax returns required to be filed by Borrower and each Loan Party of its Subsidiaries have been timely filed (or an extension obtained with respect thereto) and all taxes shown on such returns, plus any interest, penalties or other charges in respect thereof, that are due and payable upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquencypaid, except such taxes that are the subject of a Permitted Protest;
(k) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agent;
(l) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretion;
(m) Agent shall have received the Closing Date Business Plan;
(n) Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Borrower 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 Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its businessthereby;
(p) Agent Lender shall have received evidence, in form and substance satisfactory to Agent, a certificate from the Secretary of State of the establishment State of the Collection Account and the Trust AccountDelaware, and the perfection of the Trustee’s Liens;
(q) Agent which certificate shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit indicate that Borrower is in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, good standing in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)such jurisdiction; and
(sq) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Sources: Loan and Security Agreement (New World Restaurant Group Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of extend any credit provided for hereunder is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before August 20, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2003;
(b) Agent Lender shall have received each all financing statements required by Lender, duly executed by Borrower, and Lender shall have received searches reflecting the filing of all such financing statements;
(c) Lender shall have received the following documentsFee Letter, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:;
(id) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lender,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower),
(iv) the Disbursement Letter for the initial Advance,
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Loan Pricing Agreement.
(c) Agent shall have received a certificate from an Authorized Person the Secretary of each Loan Party Borrower (i) attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, party and authorizing officers of Borrower to execute the same and (ii) authorizing specific certifying the names and the signatures of the officers of such Person Borrower authorized to execute sign the same, and (iii) attesting to the incumbency and signatures of such specific officers of such PersonLoan Documents;
(de) Agent Lender shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as if amended, modified, or supplemented subsequent to the Original Closing Date, certified by an Authorized Person;
(e) Agent shall have received the Secretary of Borrower or a certificate of status with respect to each Loan Party, each dated within 10 days of the Closing Date, such certificate to be issued written representation by the appropriate officer Secretary of the jurisdiction of organization of such Person, which certificate shall indicate Borrower that such Person is in good standing in such jurisdictionthere have been no changes to Borrower's Governing Documents;
(f) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction (other than such Person’s jurisdiction of organization) in which Borrower’s failure to be duly qualified or licensed would cause a Material Adverse Effect, which certificates shall indicate that Borrower is in good standing in such other jurisdiction[Intentionally Omitted];
(g) [INTENTIONALLY OMITTEDIntentionally Omitted];
(h) Agent Lender shall have received an opinion of Borrower's counsel to each Loan Party, in form and substance satisfactory to AgentLender;
(i) Agent Borrower shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing CertificateAvailability;
(j) Agent no Default or Event of Default shall have received satisfactory evidence (including a certificate of an Authorized Person) that all tax returns required to occurred and be filed by each continuing under the Original Loan Party have been timely filed and all taxes upon any Loan Party, or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted ProtestAgreement;
(k) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agent;
(l) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretion;
(m) Agent shall have received the Closing Date Business Plan;
(n) Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(ol) Other than with respect to qualifications to conduct business no injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the extending of such credit shall have been issued and remain in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of force by any Governmental Authority against Borrower, Borrower’s Subsidiaries and Servicer Lender, or any of their Affiliates;
(m) Borrower 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 Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated hereby and thereby;
(n) Lender shall have received from Borrower all schedules required by this Agreement updated through and Agent including the Closing Date;
(o) Lender shall have received evidence, in form all fees due and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of payable under the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of Fee Letter on the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(sp) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation obligations of each Lender to make on the initial extensions of credit provided for hereunder is Closing Date, are subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent set forth below (the making of unless provided on such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):later date stated in Section 6.23:
(a) Agent Lender shall have received a Filing Authorization Letter, duly executed by Borrower this Agreement and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral;
(b) Agent shall have received each of the following documentsother Financing Documents, in form and substance satisfactory to AgentLender, duly executedexecuted by each Person party thereto, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment , and no Default or Event of Default shall exist as of the Closing Date and a Transferee Letter from each execution of such Lender,documents;
(iib) Lender shall have received confirmation that the Closing Certificate, certifying Security Documents (to the extent applicable) have been registered in the applicable jurisdictions so as to result in perfected of security in all jurisdictions required by the accuracy and completeness, as of Lender on the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower),
(iv) the Disbursement Letter for the initial Advance,
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Loan Pricing Agreement.;
(c) Agent Lender shall have received the Warrants on the terms described in the Term Sheet;
(d) Lender shall have received the applicable fees outlined in Section 2.03(b) together with any other fees contemplated by this Agreement and payable on the Closing Date;
(e) Lender shall have received a payoff letter with respect to the Existing Loan Facility together with all documents as Lender may reasonably require in connection with the payoff of the Existing Loan Facility to evidence the payoff and release of all Liens pursuant to the Existing Loan Facility;
(f) Lender shall have received Collateral Access Agreements for the Borrower’s Mississauga, Ontario location;
(g) Lender shall have received a certificate from an Authorized Person officer of each Loan Party attesting to (i) attesting to the resolutions of such PersonLoan Party’s applicable Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Financing Documents to which such Person it is a party, (ii) authorizing specific the resolutions of such Loan Party’s stockholders, shareholders or members, as applicable, to the extent required pursuant to such Loan Party’s Governing Documents, (iii) such Loan Party’s Governing Documents, certified by the applicable jurisdiction of organization, and (iv) to the extent applicable in the relevant jurisdiction of incorporation, incumbency of the officers of such Person to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such PersonLoan Party;
(dh) Agent shall have received copies of the Governing Documents of each Loan Party, as amended, modified, or supplemented to the Closing Dateextent applicable in the relevant jurisdiction of incorporation, certified by an Authorized Person;
(e) Agent Lender shall have received a certificate of status existence or good standing (or equivalent) with respect to each Loan Party, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate that such Person is in the good standing in such jurisdiction;
(f) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction (other than such Person’s applicable jurisdiction of organization) in which Borrower’s failure to be duly qualified or licensed would cause a Material Adverse Effect, which certificates shall indicate that Borrower is in good standing in such other jurisdiction;
(g) [INTENTIONALLY OMITTED]
(h) Agent shall have received an opinion of counsel to each Loan Party, in form and substance satisfactory to Agent;
(i) Agent Lender shall have received the Approved Forms and Required ProceduresBudget, all in form and substance satisfactory to Agent, which shall also be attached together with such financial statements as exhibits to the Closing CertificateLender may require;
(j) Agent Lender shall have received satisfactory evidence a legal opinion letter of (including a certificate i) Borrower’s counsel in Canada and the United States of an Authorized Person) that all tax returns required to be filed by each Loan Party have been timely filed and all taxes upon any Loan Party, or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted ProtestAmerica;
(k) Agent Each of the Loan Parties shall have received all licenses, approvals, consents or evidence of other actions required by any Person in connection with the execution and delivery by such Loan Party of this Agreement or any other Financing Document or with the consummation of the transactions contemplated hereby and thereby;
(l) Lender shall have received one or more certificates of insurance, together with the endorsements thereto, as are required by Section 6.08, the form and substance of which shall be satisfactory to Lender;
(m) No action, suit, investigation, litigation or proceeding before any arbitrator or Tribunal that could reasonably be expected to have a Material Adverse Effect if adversely determined shall be pending or threatened against any Loan Party or any Subsidiary;
(n) Lender shall have completed its business, legal, and collateral Collateral due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agent;
(l) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent Lender in its sole discretion;
(mo) Agent No Material Adverse Effect shall have received the Closing Date Business Planoccurred;
(np) Borrower The Borrower’s Deposit Account and operating Account with the Lender shall have been opened;
(q) No Material Adverse Change shall have occurred since the date of the Term Sheet.
(r) The Loan Parties shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(s) all All other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions extension of credit provided for hereunder hereunder, is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent)::
(a) Agent Lender shall have received a Filing Authorization Letter, duly executed by Borrower and Servicereach Seller, together with and Lender shall have filed appropriate financing statements duly filed on Form UCC-1 in such office or offices as may be necessary or, in the opinion of AgentLender’s Permitted Discretion, desirable to perfect the TrusteeLender’s Liens in and to the Collateral, including without limitation, (i) one or more UCC-1 financing statements naming each Seller as debtor and Borrower, as assignor-secured party, and Lender, as assignee-secured party, describing Leases, Chattel Paper and other assets to be acquired by Borrower from such Seller, in form reasonably satisfactory to Lender, and (ii) a financing statement naming Borrower as debtor, and Lender, as secured party, describing all assets of Borrower, in form reasonably satisfactory to Lender;
(b) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderBackup Servicing Agreement,
(ii) the Closing CertificateCollection Account Control Agreement, certifying as to the accuracy Lockbox Control Agreement and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalseach other Control Agreement,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Closing Certificate,
(iv) the Custodial Agreement,
(v) the Disbursement Letter for the initial Advance,
(vvi) the Fee Letters,
(vi) the Parent GuarantyLetter,
(vii) the Perfection Officers’ Certificate,
(viii) releases a Guaranty of each of Originator and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, andParent;
(ix) the Loan Pricing Pledge Agreement (together with certificates evidencing all certificated securities and blank stock powers with respect thereto), pursuant to which Originator pledges all of the Stock of Borrower to Lender, together with appropriate UCC-1 financing statements;
(x) the Purchase and Contribution Agreement;
(xi) the Servicing Agreement; and
(xii) the Subordination Agreements (to the extent of any existing Subordinated Debt).
(c) Agent Lender shall have received a certificate from an Authorized Person of each Loan Party (i) attesting to the duly adopted resolutions of such Personeach Loan Party’s Board of Directors Directors, authorizing the such Loan Party’s execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Loan Party is a party, (ii) authorizing specific officers of such Person Loan Party to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such PersonLoan Party;
(d) Agent Lender shall have received copies of the Governing Documents of each Loan Party’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Person;
(e) Agent Lender shall have received (i) a certificate of status with respect to each Loan Party, each dated within 10 20 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonLoan Party, which certificate shall indicate that such Person Loan Party is in good standing in such jurisdiction;
, and (fii) Agent shall have received certificates of status with respect to Borrowereach Loan Party, each dated within 30 20 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of such Loan Party) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower such Loan Party is in good standing in such other jurisdictionjurisdictions;
(f) Lender shall have received a certificate from an authorized officer of MLR II (i) attesting to the duly adopted resolutions of MLR II’s Board of Directors, authorizing MLR II’s execution, delivery, and performance of the Purchase and Contribution Agreement and the Purchase Date Notice to be delivered on the Closing Date, (ii) authorizing specific officers of MLR II to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of MLR II;
(g) [INTENTIONALLY OMITTED]Lender shall have received copies of MLR II’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by an authorized officer of MLR II;
(h) Agent Lender shall have received a certificate of status with respect to MLR II, dated within 20 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of MLR II, which certificate shall indicate that MLR II is in good standing in such jurisdiction;
(i) Lender shall have received copies of all Asset-Backed Facility Documents, as amended, modified, or supplemented to the Closing Date, certified by an opinion Authorized Person;
(j) Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be reasonably satisfactory to Lender;
(k) Lender shall have received one or more opinions of counsel to each Loan PartyParties and MLR II, in form and substance satisfactory to AgentLender, in its Permitted Discretion;
(il) Agent Lender shall have received the Approved Forms and the Required Procedures, all in form and substance satisfactory to AgentLender, which shall also be attached as exhibits to the Closing Certificate;
(jm) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Person) that all tax returns required to be filed by each Loan Party Parent and its Subsidiaries have been timely filed and all taxes upon any Loan Party, Parent and its Subsidiaries or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted ProtestProtest (which condition Lender hereby acknowledges has been satisfied);
(kn) Agent Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and on-site review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiariesthe Loan Parties’ Books, a review of Servicer’s operating systems and Borrowerback-office functions, Originator’s collateral valuation methods, compliance with Required Procedures, verification of each of the Loan Party’s Parties’ representations and warranties to AgentLender, (ii) due diligence with respect to and audit verification of each of Borrower’s and Servicer’s systems and controlsthird party service providers, including any replacement servicer or custodian, the results of which shall be satisfactory to AgentLender, (iii) an inspection of each of the locations where Originator conducts business, (iv) review of all documentation relating to Leases originated or acquired by Originator, or to be acquired by Borrower, on or before the Closing Date, (v) review of all Asset-Backed Facility Documents, and (vi) review of Originator’s plan for allocation of future assets among Originator and its Affiliates, the results of which, in each case, shall be acceptable to Lender, in its Permitted Discretion;
(lo) Agent Lender shall have completed a systems audit, including, without limitation, a review of Originator’s management information systems, accounting and lease servicing systems;
(p) Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Officers, the results of which are satisfactory to Agent in Lender at its sole discretionoption;
(mq) Agent Lender shall have received (i) a copy of the audited financial statements of Parent and its Subsidiaries for the fiscal year ended December 31, 2008, (ii) a copy of Parent’s Form 10-Q quarterly report for the quarter ended June 30, 2009, and (iii) a copy of Originator’s unaudited consolidated balance sheet and income statement for the year-to-date period ended August 31, 2009, the results of which, in each case, shall be satisfactory to Lender at its sole option;
(r) Lender shall have received the Closing Date Business Plan, which shall be satisfactory to Lender at its sole option;
(ns) Borrower shall have paid or shall pay with the initial Advance all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(t) Each Person that is named as a secured party in a filed financing statement covering any property of Borrower shall release all Liens held against such property (other than Permitted Liens);
(u) Lender shall have received all such agreements, documents, releases and other items as Lender may reasonably require in order to evidence the effective assignment to Borrower of all Leases, Chattel Paper and other assets to be acquired by Borrower from any Seller on the Closing Date, free and clear of all Liens and other interests of all Persons, in form reasonably satisfactory to Lender, including fully executed and completed originals of all applicable Purchase Date Notice(s) with attached Contract Schedule(s) covering all initial Leases being acquired by Borrower;
(v) Borrower shall have (i) established the Collection Account at the Collection Account Bank, and delivered to Lender an executed Control Agreement for the Collection Account, (ii) established the Lockbox Account at the Lockbox Bank, and delivered to Lender an executed Control Agreement for the Lockbox Account, and (iii) delivered to Lender an executed Control Agreement for each other Deposit Account and Securities Account maintained by Borrower;
(i) Custodian shall have received the Original Contracts and other Contract Files for all fees payable Borrower Leases listed on the initial Contract Schedule and such Contract Files shall have been checked in by the Custodian in accordance with the Fee Letters and this Custodial Agreement, and (ii) Lender shall have received a Custodial Receipt and Report with respect to such Contract Files without any exceptions noted except for such exceptions as have been approved by Lender in each case, to the extent then due and payableadvance in its Permitted Discretion;
(ox) Other The initial Advance shall be in an amount not less than with respect to qualifications to conduct business in jurisdictions $13,250,000;
(other than such Person’s jurisdiction of organizationy) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Lender shall have received satisfactory evidence that as of the Closing Date: (i) Parent’s Tangible Net Worth is not less than $138,000,000; and (ii) Borrower’s Tangible Net Worth is not less than the greater of (A) $5,000,000 and (B) the amount sufficient to maintain compliance with the Borrowing Base;
(z) On the Funding Date for the initial Advance, following the initial Advance and the payment of all fees and expenses contemplated hereunder in connection therewith, Borrower shall have Availability of no less than $1,000,000;
(aa) Lender shall have received satisfactory evidence that Borrower has put in place an interest rate hedging program that complies with Section 6.20;
(bb) Each Loan Party shall have received, and provided to Lender a copy of, all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by such Person Loan Party of the Loan Documents or with the consummation of the transactions contemplated thereby and all permits or for licenses required to be obtained in connection with the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(pcc) Agent Lender shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trusteeevidence that Borrower has begun implementing Lender’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)electronic collateral reporting system; and
(sdd) all All other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, executed or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Sources: Loan and Security Agreement (Marlin Business Services Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of each the Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each the Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before ___________, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2004;
(b) Agent the Lender shall have filed financing statements against the Borrowers required by the Lender and the Lender shall have received searches respecting the Borrowers with results satisfactory to the Lender;
(c) the Lender shall have received each of the following documents, in form and substance satisfactory to Agentthe Lender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderDisbursement Letter,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsIntellectual Property Security Agreement,
(iii) Control Stock Pledge Agreements pursuant to which 100% of the equity of each of the Borrowers, with respect the exception of the equity of Zanett, Inc., has been pledged to all Deposit Accounts the Lender, along with the originals of the stock certificates that have been pledged and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)duly executed blank stock powers relating thereto,
(iv) the Disbursement Letter for the initial AdvancePromissory Notes,
(v) Subordination Agreements from (A) each of the Fee Lettersholders of promissory notes or debt for borrowed money issued by any Borrower and (B) each such Borrower that issued such debt,
(vi) the Parent Guaranty,Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Delta Communications Group, Inc., and
(vii) W-9 forms duly completed for each of the Perfection Certificate,Borrowers;
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ixd) the Loan Pricing Agreement.
(c) Agent Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party Borrower attesting to (i) attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, same and (iiiii) attesting to the incumbency and signatures of such specific officers of such Personofficers;
(de) Agent the Lender shall have received copies of the each Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of such Borrower;
(ef) Agent the Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of before the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent the Lender shall have received certificates of status with respect to each Borrower, each dated within 30 days of before the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of such Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that such Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(h) Agent the Lender shall have received an opinion a certificate of counsel to each Loan Partyinsurance, in together with the endorsements thereto, as are required by Section 6.7, the form and substance satisfactory to Agent;
(i) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent shall have received satisfactory evidence (including a certificate of an Authorized Person) that all tax returns required to be filed by each Loan Party have been timely filed and all taxes upon any Loan Party, or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agentthe Lender;
(li) Agent the Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) Collateral Access Agreements with respect to the Loan Parties and each such leased locations of the Executive Officers and of specified officers of Borrowers as the Loan Parties Lender deems appropriate, which may include those at (including without limitation i) ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (ii) ▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, (iii) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, (iv) ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (v) ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and (vi) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇)-▇▇▇▇;
(j) the Lender shall have received an opinion of the Borrowers' counsel in form and substance satisfactory to the Lender;
(k) the Lender shall have received a duly completed and executed current Borrowing Base Certificate in form and substance satisfactory to the Lender;
(l) the Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(m) the Lender shall have completed its business, legal, and collateral due diligence with respect to the Borrowers, including a collateral audit and review of each Borrower's books and records, receipt and review of each Borrower's audited financial statements for its fiscal year that ended on December 31, 2003 in form and detail and with results satisfactory to the Lender, and verification of the Borrowers' representations and warranties to the Lender, the results of which are shall be satisfactory to Agent in its sole discretion;
(m) Agent shall have received the Closing Date Business PlanLender;
(n) Borrower the Borrowers shall have paid to the Lender the initial installment of the commitment fee in the amount of $25,000.00 and all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(o) Other than with respect the then unpaid principal balance of Indebtedness subordinated to qualifications the Obligations on terms acceptable to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to the Lender shall not be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater less than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)6,000,000.00; and
(sp) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each the Lender Group (or any member thereof) to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent and each LenderAgent, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) The Closing Date shall occur on or before September 30, 1999;
(b) Agent shall have received a Filing Authorization Letterall financing statements required by Agent, duly executed by Borrower or Holdings, as applicable, and Servicer, together with appropriate Agent shall have received searches reflecting the filing of all such financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateralstatements;
(bc) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lender,this Agreement;
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,Fee Letter;
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower),Concentration Account Agreement;
(iv) the Disbursement Letter for the initial Advance,Letter;
(v) the Fee Letters,Pledged Notes;
(vi) the Parent Guaranty,Pledged Deeds of Trust;
(vii) the Perfection Certificate,Pledged Note Endorsements;
(viii) releases and terminations the Pledged Deed of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, andTrust Assignments;
(ix) the Loan Pricing Agreement.Pledged Title Policies;
(cx) the Pledged Title Policy Assignment Endorsements;
(xi) the Pledged Note Obligor Notifications;
(xii) the Pledged Note Estoppels;
(xiii) the Amendments to Intercreditor Agreements;
(xiv) the Holdings Guaranty;
(xv) the Guaranty;
(xvi) the Suretyship Agreement; and
(xvii) the FF&E Bank Notification Letters;
(d) Agent shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ef) Agent shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 30 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent shall have received certificates a certificate from the Secretary of Holdings attesting to the resolutions of Holdings' Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which Holdings is a party and authorizing specific officers of Holdings to execute the same;
(h) Agent shall have received copies of Holdings' Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of Holdings;
(i) Agent shall have received a certificate of status with respect to BorrowerHoldings, each dated within 30 days of the Closing Date, such certificates certificate to be issued by the appropriate officer of each jurisdiction (other than such Person’s the jurisdiction of organization) in which Borrower’s failure to be duly qualified or licensed would cause a Material Adverse Effectorganization of Holdings, which certificates certificate shall indicate that Borrower Holdings is in good standing in such other jurisdiction;
(g) [INTENTIONALLY OMITTED]
(h) Agent shall have received an opinion of counsel to each Loan Party, in form and substance satisfactory to Agent;
(i) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent shall have received satisfactory evidence (including a certificate of insurance, together with the endorsements thereto, as are required by Section 6.9, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion;
(k) Agent shall have received an Authorized Personopinion of Obligors' counsel in form and substance satisfactory to Agent in its Permitted Discretion;
(l) Agent shall have received satisfactory evidence in Agent's Permitted Discretion that all tax returns required to be filed by each Loan Party Obligor have been timely filed and all taxes upon any Loan Party, each Obligor or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, real property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(km) Agent shall have completed its business, legal, and collateral due diligence, including but not limited to, (i) a collateral audit and review of each of Borrower’s, Servicer’s, Obligor's books and Borrower’s Subsidiaries’ Books, a review of Servicer’s records and Borrower’s collateral valuation methods, verification of each of Loan Party’s Obligor's representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsthe Lender Group, the results of which shall be satisfactory to Agenteach Lender, in each Lender's Permitted Discretion, and (ii) a review of the financial and business performance of each Shoney's Inn operated on the Underlying Real Property Collateral securing the Pledged Notes and the determination of the Baseline NOI, the results of which shall be satisfactory to each Lender in each Lender's Permitted Discretion;
(ln) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Obligor's senior management, the results of which are satisfactory to Agent in its sole discretion;
(m) Agent shall have received the Closing Date Business Plan;
(no) Borrower shall have paid pay all Lender Group Expenses incurred by Agent or any other Lender in connection with the transactions evidenced by this Agreement entry of Agent and all fees payable in accordance with the Fee Letters and Lenders into this Agreement, in each case, to the extent then due and payable;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidencereal estate appraisals, in form and substance substance, and from real estate appraisers, satisfactory to Agent, Agent in its Permitted Discretion with respect to each parcel of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s LiensUnderlying Real Property Collateral;
(q) Agent shall have received an irrevocable initial request for an Advance title reports and title insurance policies or issuance consents to assignment of Letters title policies by the respective title companies, in form and substance, and from title companies, satisfactory to Agent in its Permitted Discretion with respect to each parcel of Credit in an aggregate amount equal to or greater than $25,000,000Underlying Real Property Collateral;
(r) Agent shall have received, to its satisfaction in its Permitted Discretion, an assignment for the benefit of the Lenders of the FF&E Reserves maintained by each Mortgagor of each parcel of Underlying Real Property Collateral which secures a Pledged Note;
(s) Agent shall have received evidenceHoldings' quarterly report to the SEC on Form 10-Q for its fiscal quarter ending April 18, 1999, and such additional schedules as required to present such financial statements on a consolidating as well as on a consolidated basis, the results of which shall be satisfactory to Agent in its Permitted Discretion;
(t) Agent shall have determined, to its satisfaction in its Permitted Discretion, that the Pledged Notes are cross-collateralized and cross-defaulted each to each other;
(u) Agent shall have determined, to its satisfaction in its Permitted Discretion, the right of Agent, on behalf of the Lender Group, to change the flag under which the lodging operations are conducted on the Real Estate Collateral in the event Agent enters into possession and control thereof as a result of the exercise of remedies with respect to the Pledged Notes or the Pledged Deeds of Trust upon default by a Mortgagor;
(v) Agent shall have received such estoppel letters from the purchasers under the Motel Purchase Agreement, with respect to the status of the Pledged Notes as of the Closing Date as Agent shall require in its Permitted Discretion;
(w) Obligors shall have utilized their best efforts to obtain for the benefit of the Lender Group estoppel letters, in form and substance satisfactory to the Agent in its Permitted Discretion, from each ground lessor with respect to Real Estate Collateral, if any, stating that the ground lease is in full force and effect, that the ground lessor agrees to send copies of any notices of default sent to the ground lessee also to Agent, and that as of the Closing DateAgent has the right to cure any such default applicable to a mortgagee under the applicable ground lease;
(x) Agent and ShoLodge Franchise shall have entered into an agreement, all Portfolio Loans in form and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than substance acceptable to Agent in its Permitted LiensDiscretion, including, without limitation, whereby ShoLodge Franchise agrees to (i) provide to Agent, at such time as any notice is sent to the Mortgagor/licensee, a fully-executed payoff letter evidencing (A) copy of any notices sent to the release Mortgagor/licensee under the applicable license agreement for the use of the Shoney's Inn marks with respect to lodging operations on the Underlying Real Property, and to permit Agent to cure any default by the DZ Trustee (as defined Mortgagor/licensee under the applicable license agreement within the time periods provided in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified thereinlicense agreement, and (ii) that certain Assignment Agreement, dated as to license to Agent the use of the date hereofShoney's Inn marks, by upon the same terms and between Servicer and conditions set forth in the DZ Borrowerapplicable license agreement, whereby in the DZ Borrower assignedevent that the Agent comes into possession of any Underlying Real Property Collateral, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(sy) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)in its Permitted Discretion.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall occur on or before July 7, 2003;
(b) Lender shall have received a Filing Authorization Letter, duly executed by Borrower and Servicer, together with appropriate financing statements on Form UCC-1 to be duly filed in such office or offices as may be necessary or, in the opinion of AgentLender, desirable to perfect the Trustee’s Lender's Liens in and to the Collateral;
(bc) Agent Lender shall have received each of the following documents, in form and substance reasonably satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderFee Letter,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsGuarantor Security Agreement,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Guaranty,
(iv) the Disbursement Letter for the initial AdvanceIntercompany Subordination Agreement,
(v) the Fee LettersIntercreditor Agreement,
(vi) the Parent GuarantyOfficers' Certificate,
(vii) the Perfection CertificatePay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens)Stock Pledge Agreement, together with such UCC financing statement amendments terminating or partially releasing such security interests all certificates representing the shares of Stock pledged thereunder, as may be required by Lenderwell as Stock powers with respect thereto endorsed in blank, and
(ix) the Loan Pricing Trademark Security Agreement.;
(cd) Agent Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent Lender shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ef) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 20 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent Lender shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictions;
(h) Lender shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's board of directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Lender shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Lender shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that Guarantor is in good standing in such jurisdiction;
(gk) [INTENTIONALLY OMITTED]Lender shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(hl) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by SECTION 6.8, the form and substance of which shall be satisfactory to Lender;
(m) Borrower shall use its reasonable best efforts to obtain a Collateral Access Agreement, executed and delivered by each party thereto, with respect to Borrower's Headquarters;
(n) Lender shall have received an opinion of Borrower's counsel to each Loan Party, in form and substance reasonably satisfactory to AgentLender;
(io) Agent Borrower shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits Availability after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing CertificateDate under this Agreement or the other Loan Documents;
(jp) Agent shall have received satisfactory evidence (including a certificate of an Authorized Person) that all tax returns required to be filed by each Loan Party have been timely filed and all taxes upon any Loan Party, or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent Lender shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each Borrower's and its Subsidiaries books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s 's representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsLender, the results of which shall be reasonably satisfactory to AgentLender;
(lq) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower's senior management, the results of which are reasonably satisfactory to Agent Lender in its sole discretion;
(mr) Agent Lender shall have received the Borrower's Closing Date Business Plan;
(ns) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(ot) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, Borrower and each of Borrower, Borrower’s its Subsidiaries and Servicer 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 Person Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)thereby; and
(su) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Sources: Loan and Security Agreement (Mortons Restaurant Group Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of each the Lender Group (or any member thereof) to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each LenderAgent, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before July 31, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2002;
(b) Agent shall have lien searches (i) reflecting effective financing statements perfecting Agent's Liens (which shall be first priority, subject only to the Permitted Liens (if any) that are specifically entitled pursuant to applicable law, or specifically acknowledged in writing by Agent, to have priority over Agent's Liens), and (ii) listing all other effective financing statements which name any Borrower or any of its Restricted Subsidiaries (or any predecessor corporation or any tradename thereof or any seller of assets acquired by Borrower or any such Restricted Subsidiary outside of the ordinary course of business) as debtor that are filed in the applicable filing offices with respect to such Borrower or any such Restricted Subsidiary, none of which financing statements shall cover any of the Collateral or property of such Restricted Subsidiary, except (x) financing statements evidencing or perfecting Permitted Liens, (y) financing statements as to which Agent has received duly executed authorizations by the applicable secured party to file executed termination statements or partial release statements in form and substance satisfactory to Agent, or (z) as otherwise agreed in writing by Agent;
(c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment the Control Agreements, if any, required as of the Closing Date under Sections 4.7 and a Transferee Letter from each such Lender7.19 hereof to be executed and delivered to Agent,
(ii) a promissory note (in the Closing Certificate, certifying form attached hereto as Exhibit N-1) made by Borrower to the accuracy and completeness, as order of Agent (for the benefit of the Closing Date, Lender Group) in the original principal amount of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsMaximum Revolver Amount,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Fee Letter,
(iv) the Disbursement Letter for the initial AdvanceGuaranty,
(v) the Fee Letters,Intercompany Subordination Agreement;
(vi) the Parent GuarantyIntercreditor Agreement,
(vii) the Perfection CertificateIP Security Agreement,
(viii) releases the Mortgages and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, andEnvironmental Indemnities,
(ix) the Loan Pricing Agreement.Representations & Warranties Certificate,
(cA) each Stock Pledge Agreement, and (B) except as otherwise provided with respect to shares of Stock of the respective Restricted Subsidiaries under Section 3.3(b), either (1) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, or (2) the written acknowledgment, in form and substance satisfactory to Agent, of a bailee reasonably acceptable to Agent that such bailee is in possession or control of the items described in clause (1) above and holds, or is causing to be held, same for the benefit of Agent;
(d) Agent shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent shall have received copies of the each Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of such Borrower;
(ef) Agent shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent shall have received certificates of status with respect to each Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of such Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that such Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(h) Agent shall have received an opinion a certificate from the Secretary of counsel each Guarantor attesting to each the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Party, in form Documents to which such Guarantor is a party and substance satisfactory authorizing specific officers of such Guarantor to Agentexecute the same;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Approved Forms Closing Date, certified by the Secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and Required Procedures, all substance (including amounts) of which shall be satisfactory to Agent;
(m) [intentionally omitted]
(n) Agent shall have received opinions of Borrowers' and Guarantors' counsel in form and substance satisfactory to Agent, which opinions shall also be attached include opinions as exhibits to the Closing Certificatedue issuance and valid existence of the Borrower's and Guarantors' Casino Licenses;
(jo) Agent shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Parent) that all tax returns required to be filed by each Loan Party Borrowers have been timely filed and all taxes upon any Loan Party, Borrowers or their respective properties, assets, income, and franchises (including Real Property taxes, sales gaming taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(kp) Borrowers shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent shall have completed its business, legal, business and collateral legal due diligence, including (i) a collateral audit and review of each of Borrower’s, Servicer’s, Borrowers' books and Borrower’s Subsidiaries’ Books, a review of Servicer’s records and Borrower’s collateral valuation methods, verification of each of Loan Party’s Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and audit (ii) an inspection of each of Borrower’s and Servicer’s systems and controlsthe Facilities, the results of which shall be satisfactory to Agent;
(lr) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(ms) Agent shall have received evidence, satisfactory to Agent and its counsel, that, except as contemplated by Section 3.3(b) hereof, the Borrowers and Guarantors have made all necessary registrations with, obtained all necessary consents or approvals of, given all necessary notices to, and taken all other necessary actions required by, each applicable Gaming Authority relative to the execution, delivery, and performance of the Loan Documents by the Borrowers and the Guarantors;
(t) Agent shall have received Borrowers' Closing Date Business Plan;
(nu) Borrower Borrowers shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(pv) Agent shall have received evidence, in form and substance (i) appraisals of the Real Property Collateral satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) mortgagee title insurance policies (or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent that certain Assignment Agreementthe Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(s) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; it being understood that, in the event each Mortgage Policy is for the full amount of the Total Commitment, Agent (shall use commercially reasonable efforts to obtain a tie-in endorsement in order to lessen the approval of Agent cost of such documents Mortgage Policies payable by Borrower without affecting the rights and legal matters under this Section 3.1(vbenefits of the Lender Group in any material respect;
(w) Agent shall have received evidence, satisfactory to be evidenced Agent, that each of (i) the 10% First Mortgage Notes due 2004 of Borrower and (ii) the 13% First Mortgage Notes due 2002 of Borrower, have been repaid, or satisfactorily "legally-defeased", in full from the proceeds of the Notes (as such term is defined in the Indenture) and that all liens in respect thereof have been released;
(x) Agent shall have received copies of each of the material Senior Note Documents, together with a Officer's Certificate by the initial Advance or initial issuance Secretary of the Borrower certifying each such document as being a Letter true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(y) Agent shall have received copies of Credit hereunder).each of the FF&E Agreements, together with a Officer's Certificate by the Secretary of the Borrower certifying each such document as being a true, correct, and complete copy thereof, and the same shall be in form and substance reasonably satisfactory to the Lender Group;
(z) Agent shall have received the Board of Directors' designation of each of RGMM, RGMNM, and RRN as "Unrestricted Subsidiaries" in accordance with the provisions set forth in the definition of "Unrestricted Subsidiary" herein;
Appears in 1 contract
Sources: Loan and Security Agreement (Riviera Holdings Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of each the Lender Group (or any member thereof) to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillmentfulfilment, to the satisfaction of Agent and each Lenderor Agents, as applicable below, of each of the following conditions precedent set forth below:
(the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver a) each of the conditions precedent):precedent set forth in this Section 3.1 shall have been satisfied on or before the date that is 150 days after the date of the execution and delivery of the Domestic Loan Agreement by each of the original signatories hereto (the "Conditions Precedent Deadline");
(ab) Agent shall have received a Filing Authorization Letter, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, search results from the registrar of Companies House in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the CollateralUnited Kingdom indicating that no charges have been registered against Subsidiary Borrower;
(bc) Agent shall have received each of the following documents, in form and substance satisfactory to AgentAgent (which, in the case of items (i), (ii), (iii), and (iv), shall have obtained the approval of the other Agents), duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal UK Debenture together with other deeds and documents of title required to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lenderbe deposited thereunder,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsUK Guaranty,
(iii) Control Agreements UK Stock Pledge Agreement, together with all certificates representing the shares of Subsidiary Borrower pledged thereunder, as well as stock powers with respect to all Deposit Accounts and Securities Accounts maintained bythereto endorsed in blank, or for the benefit of, Borrower (or Servicer, for the account of Borrower),and
(iv) the Disbursement Letter for the initial Advance,UK Cash Management Agreement;
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Loan Pricing Agreement.
(cd) Agent shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Subsidiary Borrower attesting to the resolutions of such Person’s Subsidiary Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other UK Loan Documents to which such Person Subsidiary Borrower is a party, (ii) party and authorizing specific officers of such Person Subsidiary Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent shall have received copies of the Subsidiary Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Subsidiary Borrower;
(ef) Agent shall have received a certificate of status with respect to each Loan PartySubsidiary Borrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonSubsidiary Borrower, which certificate shall indicate that such Person Subsidiary Borrower is in good standing in such jurisdiction;
(fg) Agent shall have received certificates a certificate from the Secretary of status with respect each Guarantor attesting to Borrowerthe resolutions of such Guarantor's Board of Directors authorizing its execution, each dated within 30 days delivery, and performance of the Closing Date, UK Loan Documents to which it is a party and authorizing specific officers of such certificates Guarantor to be issued by execute the appropriate officer of each jurisdiction (other than such Person’s jurisdiction of organization) in which Borrower’s failure to be duly qualified or licensed would cause a Material Adverse Effect, which certificates shall indicate that Borrower is in good standing in such other jurisdictionsame;
(g) [INTENTIONALLY OMITTED]
(h) Agent shall have received an opinion a certificate from the Secretary of counsel Domestic Parent certifying that there have been no amendments, restatements, supplements, or modifications to each the Governing Documents of Domestic Parent or Subsidiary Borrower since the "Closing Date" (as defined in the Domestic Loan Party, in form and substance satisfactory to AgentAgreement);
(i) Agent shall have received a certificate from the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits Secretary of Irish Parent attesting to the Closing Certificateresolutions of Subsidiary Borrower's Board of Directors authorizing its execution, delivery, and performance of the UK Loan Documents to which Irish Parent is a party and authorizing specific officers of Irish Parent to execute the same;
(j) Agent shall have received copies of Irish Parent's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of Irish Parent;
(k) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Agent which shall have consulted with the other Agents prior to making such determination;
(l) Agent shall have received an opinion of Subsidiary Borrower's counsel, and, in Agent's sole discretion, Agent's foreign counsel, in form and substance satisfactory to Agent which shall have consulted with the other Agents prior to making such determination;
(m) Agent shall have received evidence in form and substance satisfactory to Agents (including a certificate of an Authorized Personthe chief financial officer of Subsidiary Borrower) that all tax returns required to be filed by each Loan Party Subsidiary Borrower have been timely filed and all taxes upon any Loan Party, Subsidiary Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted ProtestProtest or are set forth on Schedule 6.7;
(kn) Agent Domestic Parent, Subsidiary Borrower and Irish Borrower shall, in the aggregate, have Excess Availability and Qualified Cash in an amount of not less than $100,000,000 after giving effect to the initial extensions of credit under the Domestic Loan Agreement, this Agreement and the Irish Loan Agreement;
(o) Agents shall have completed its business, legal, and their collateral due diligence, including a collateral audit and review of each of Subsidiary Borrower’s, Servicer’s, 's books and Borrower’s Subsidiaries’ Books, a review of Servicer’s records and Borrower’s collateral valuation methods, verification of each of Loan Party’s Subsidiary Borrower's representations and warranties concerning Collateral to Agentthe Lender Group, the results of which shall be satisfactory to the Agents;
(p) Agent shall have completed its business and audit of each of Borrower’s and Servicer’s systems and controlslegal due diligence, the results of which shall be satisfactory to Agent;
(lq) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Subsidiary Borrower's senior management, the results of which are satisfactory to Agent in its sole discretion;
(mr) Agent shall have received the Closing Date Business Plan;
(n) Subsidiary Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(os) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction Agent shall have received copies of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Subsidiary Borrower's material leases, Borrower’s Subsidiaries financing agreements, supplier agreements, transition services agreements, and Servicer Intellectual Property licenses, together with a certificate of the Secretary of Subsidiary Borrower certifying each such document as being a true, correct, and complete copy thereof;
(t) Subsidiary Borrower 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 Person Subsidiary Borrower of the this Agreement or any other UK Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)thereby; and
(su) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Agent.
Appears in 1 contract
Sources: Loan Agreement (Palm Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of each the Lender Group (or any member thereof) to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each LenderAgent, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) the Closing Date shall occur on or before July 16, 2001;
(b) Agent shall have received a Filing Authorization Letterall financing statements, assignments or amendments required by Agent, duly executed by Borrower Borrower, and Servicer, together with appropriate Agent shall have received searches reflecting the filing of all such financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateralstatements;
(bc) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, or amendments thereto if such documents are already in existence, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderControl Agreements,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsIntellectual Property Security Agreement,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Disbursement Letter,
(iv) the Disbursement Letter for the initial AdvanceDue Diligence Letter,
(v) the Fee LettersLetter,
(vi) the Parent GuarantyCash Management Agreements,
(vii) the Perfection Officers' Certificate,, and
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens)Stock Pledge Agreement, together with such UCC financing statement amendments terminating or partially releasing such security interests all certificates representing the shares of Stock pledged thereunder, as may be required by Lender, andwell as Stock powers with respect thereto endorsed in blank';
(ix) the Loan Pricing Agreement.
(cd) Agent shall have received a certificate from an Authorized Person officer of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ef) Agent shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(h) Agent shall have received an opinion a certificate of counsel to each Loan Partyinsurance, in together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Agent;
(i) Agent shall have received the Approved Forms and Required Procedures, all an opinion of Borrower's counsel in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent shall have received satisfactory evidence (including a certificate of an Authorized Personthe President of Borrower) that all tax returns required to be filed by each Loan Party Borrower have been timely filed and all taxes upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each Borrower's books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s 's representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and audit (ii) an inspection of each of Borrower’s and Servicer’s systems and controlsthe locations where Inventory is located, the results of which shall be satisfactory to Agent;
(l) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretion;
(m) Agent shall have received the Closing Date Business Plan;
(n) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(s) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder).
Appears in 1 contract
Sources: Loan and Security Agreement (Leapfrog Enterprises Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before November 26, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2003;
(b) Agent Lender shall have filed all financing statements required by Lender, duly authorized by Borrower, and Lender shall have received searches reflecting the filing of all such financing statements;
(c) Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderTrademark Security Agreement,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsBOA Repurchase Agreement,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Disbursement Letter,
(iv) the Disbursement Letter for Pay-Off Letter, together with UCC termination statements and other documentation evidencing the initial Advancetermination by Existing Lender of its Liens in and to the properties and assets of Borrower,
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viiivi) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by LenderDue Diligence Letter, and
(ixvii) a Compliance Certificate dated as of the Loan Pricing Agreement.Closing Date and satisfying the conditions of Section 6.3(a)(iii);
(cd) Agent On the Closing Date, Borrower shall have an Excess Availability of at least $2,000,000 after giving effect to the initial extensions of credit hereunder;
(e) Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(df) Agent Lender shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(eg) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fh) Agent Lender shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictionjurisdictions, provided, that such certificate for the State of New Jersey may indicate that annual reports for the years 2000 and 2001 are outstanding so long as Borrower shall have delivered to Lender evidence satisfactory to Lender that Borrower has duly completed and filed a New Jersey Corporation Business Tax Payment and Annual Report for each such year and has paid the fees required in connection therewith to the State of New Jersey;
(gi) [INTENTIONALLY OMITTED]Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender;
(hj) Agent Lender shall have received an opinion of Borrower's counsel to each Loan Party, in form and substance satisfactory to AgentLender;
(ik) Agent Lender shall have received a certificate of the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached chief financial officer of Borrower certifying that Borrower is Solvent as exhibits to of the Closing CertificateDate;
(jl) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Borrower) that all tax returns required to be filed by each Loan Party Borrower have been timely filed and all taxes upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(km) Agent Lender shall have received releases satisfactory to Lender executed by Congress Financial Corporation releasing any security interests that it may have on record against any of Borrower's trademarks in the United States Patent and Trademark Office;
(n) Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each Borrower's books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s 's representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsLender, the results of which shall be satisfactory to AgentLender, and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Lender;
(lo) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower's senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(mp) Agent Lender shall have received an appraisal of the Net Liquidation Percentage applicable to Borrower's Inventory, the results of which shall be satisfactory to Lender;
(q) Lender shall have received Borrower's Closing Date Business Plan;
(nr) Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;; and
(os) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Borrower 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 Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form thereby; and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(s) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Sources: Loan and Security Agreement (Harvey Electronics Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of each the Lender Group (or any member thereof) to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lenderthe Lenders, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) The Closing Date shall occur on or before November 1, 2002;
(b) Agent shall have received a Filing Authorization Letterall financing statements required by Agent, duly executed by Borrower Borrower, and ServicerAgent shall have received UCC, together with appropriate financing statements duly filed in such office or offices as may be necessary ortax lien, in the opinion of Agenttitle searches and judgment searches, desirable to perfect the Trustee’s Liens in and satisfactory to the CollateralLenders (including fixture filings) and Agent shall have received searches reflecting the filing of all such financing statements;
(bc) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderDisbursement Letter,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsDue Diligence Letter,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Canadian Guarantee,
(iv) the Disbursement Letter for Canadian General Security Agreement and the initial AdvanceHypothec,
(v) the Fee LettersMortgages and all ancillary documents required by or customary under state and local laws in connection therewith,
(vi) the Parent GuarantyOfficers' Certificate,
(vii) the Perfection CertificatePay-Off Letter,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens)Stock Pledge Agreement, together with such UCC financing statement amendments terminating or partially releasing such security interests all certificates representing the shares of Stock pledged thereunder, as may be required by Lender, andwell as Stock powers with respect thereto endorsed in blank,
(ix) the Loan Pricing Intellectual Property Security Agreement.,
(cx) the Interlender Agreement,
(xi) the Indenture,
(xii) the Control Agreements, and
(xiii) the Cash Management Agreements;
(d) The Lenders shall have received mortgagee title insurance policies and surveys for Real Property Collateral valued at more than $1,000,000 (or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to the Lenders (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to the Lenders assuring the Lenders that the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to the Lenders;
(e) Agent shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) attesting to the resolutions of such Person’s Loan Party's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Loan Party is a party, (ii) party and authorizing specific officers of such Person Loan Party to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(df) Agent shall have received copies of the Governing Documents of each Loan Party's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of each such Loan Party;
(eg) Agent shall have received a certificate of status with respect to each such Loan Party, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of each such PersonLoan Party, which certificate shall indicate that each such Person Loan Party is in good standing in such jurisdiction;
(f) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction (other than such Person’s jurisdiction of organization) in which Borrower’s failure to be duly qualified or licensed would cause a Material Adverse Effect, which certificates shall indicate that Borrower is in good standing in such other jurisdiction;
(g) [INTENTIONALLY OMITTED]
(h) Agent shall have received an opinion a certificate of counsel to each Loan Partyinsurance, in form together with the endorsements thereto, as required by Section 6.8, the form, scope and substance of which shall be satisfactory to Agent;
(i) Agent and Lenders shall have received an opinion of the Approved Forms Loan Parties' counsel concerning, among other things, corporate existence, due authorization, execution and Required Proceduresdelivery, all as of the Closing and of ACC Canada's counsel concerning, among other things, corporate existence, enforceability, due authorization, execution and delivery, and perfection of the Agent's security interest, each in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing CertificateLenders;
(j) Agent shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of each Loan Party) that all tax returns required to be filed by each Loan Party have been timely filed and all taxes upon any each Loan Party, Party or their its respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(l) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each of Borrower’s, Servicer’s, Loan Party's books and Borrower’s Subsidiaries’ Books, a review of Servicer’s records and Borrower’s collateral valuation methods, verification of each of Loan Party’s 's representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, (ii) an inspection of each of the locations where Inventory is located, including, but not limited to, retail locations randomly selected by the Agent, the results of which shall be satisfactory to Agent, and audit (iii) satisfactory review of each the June 2002 physical inventory results, the results of Borrower’s and Servicer’s systems and controlswhich are acceptable to Lenders in their sole discretion;
(m) Agent shall have received an appraisal of the Net Liquidation Percentage applicable to the Loan Parties' Inventory, the results of which shall be satisfactory to Agent;
(ln) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the The Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretion;
(m) Agent shall have received the Closing Date Business Plan;
(n) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer shall have received all licenses, approvals or evidence of other actions actions, if any, required by any Governmental Authority in connection with the execution and delivery by such Person of the Loan Documents Parties of this Agreement or any other Loan Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its businessthereby;
(po) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(s) all All other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Lenders;
(p) Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(q) Lenders shall have received a certified copy of the Business Plan;
(r) Lenders shall have received a completed Enterprise Value determination acceptable to the Lenders in their sole discretion;
(s) Agent shall have hired an appraiser to appraise the Company's headquarters at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, Chicago, Illinois;
(t) Agent shall have received Desktop Real Estate appraisals, in form and substance acceptable to Agent;
(u) The Confirmation Order shall be a final, nonappealable order, and Lenders shall have received a copy thereof, certified by the approval clerk of Agent the Bankruptcy Court;
(v) All Indebtedness of such documents the Borrower under the Post-Petition Loan Agreement outstanding as of the Closing Date shall be repaid in full (which may be with the proceeds of the initial Advances and legal matters under this Section 3.1(vTerm Loans made hereunder);
(w) Lenders shall have received evidence, satisfactory to the Lenders, that each of the conditions precedent to the Effective Time and consummation of the Plan shall have been satisfied or, to the extent permitted by the Plan, and consented to by the Lenders, waived, and the Effective Time shall have occurred; and
(x) All necessary government and third party approvals required to be evidenced obtained by Borrower or any of its Subsidiaries in connection with the initial Advance Reorganization have been obtained and remain in effect, and all applicable waiting periods have expired without any action being taken by any competent authority which restrains, prevents, impedes, delays or initial issuance imposes adverse conditions upon, the consummation of a Letter of Credit hereunder)the Reorganization.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each the Lender Group (or any member thereof) to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillmentfulfilment, to the satisfaction of Agent and each Lenderor Agents, as applicable below, of each of the following conditions precedent set forth below:
(the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver a) each of the conditions precedent):precedent set forth in this Section 3.1 shall have been satisfied on or before the date that is 150 days after the date of the execution and delivery of the Domestic Loan Agreement by each of the original signatories hereto (the "Conditions Precedent Deadline");
(ab) Agent shall have received a Filing Authorization Letter, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, search results from the registrar of Companies House in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the CollateralUnited Kingdom indicating that no charges have been registered against Subsidiary Borrower;
(bc) Agent shall have received each of the following documents, in form and substance satisfactory to AgentAgent (which, in the case of items (i), (ii), (iii), and (iv), shall have obtained the approval of the other Agents), duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal UK Debenture together with other deeds and documents of title required to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lenderbe deposited thereunder,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsUK Guaranty,
(iii) Control Agreements UK Stock Pledge Agreement, together with all certificates representing the shares of Subsidiary Borrower pledged thereunder, as well as stock powers with respect to all Deposit Accounts and Securities Accounts maintained bythereto endorsed in blank, or for the benefit of, Borrower (or Servicer, for the account of Borrower),and
(iv) the Disbursement Letter for the initial Advance,UK Cash Management Agreement;
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Loan Pricing Agreement.
(cd) Agent shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Subsidiary Borrower attesting to the resolutions of such Person’s Subsidiary Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other UK Loan Documents to which such Person Subsidiary Borrower is a party, (ii) party and authorizing specific officers of such Person Subsidiary Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent shall have received copies of the Subsidiary Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Subsidiary Borrower;
(ef) Agent shall have received a certificate of status with respect to each Loan PartySubsidiary Borrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonSubsidiary Borrower, which certificate shall indicate that such Person Subsidiary Borrower is in good standing in such jurisdiction;
(fg) Agent shall have received certificates a certificate from the Secretary of status with respect each Guarantor attesting to Borrowerthe resolutions of such Guarantor's Board of Directors authorizing its execution, each dated within 30 days delivery, and performance of the Closing Date, UK Loan Documents to which it is a party and authorizing specific officers of such certificates Guarantor to be issued by execute the appropriate officer of each jurisdiction (other than such Person’s jurisdiction of organization) in which Borrower’s failure to be duly qualified or licensed would cause a Material Adverse Effect, which certificates shall indicate that Borrower is in good standing in such other jurisdictionsame;
(g) [INTENTIONALLY OMITTED]
(h) Agent shall have received an opinion a certificate from the Secretary of counsel Domestic Parent certifying that there have been no amendments, restatements, supplements, or modifications to each the Governing Documents of Domestic Parent or Subsidiary Borrower since the "Closing Date" (as defined in the Domestic Loan Party, in form and substance satisfactory to AgentAgreement);
(i) Agent shall have received a certificate from the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits Secretary of Irish Parent attesting to the Closing Certificateresolutions of Subsidiary Borrower's Board of Directors authorizing its execution, delivery, and performance of the UK Loan Documents to which Irish Parent is a party and authorizing specific officers of Irish Parent to execute the same;
(j) Agent shall have received copies of Irish Parent's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of Irish Parent;
(k) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Agent which shall have consulted with the other Agents prior to making such determination;
(l) Agent shall have received an opinion of Subsidiary Borrower's counsel, and, in Agent's sole discretion, Agent's foreign counsel, in form and substance satisfactory to Agent which shall have consulted with the other Agents prior to making such determination;
(m) Agent shall have received evidence in form and substance satisfactory to Agents (including a certificate of an Authorized Personthe chief financial officer of Subsidiary Borrower) that all tax returns required to be filed by each Loan Party Subsidiary Borrower have been timely filed and all taxes upon any Loan Party, Subsidiary Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted ProtestProtest or are set forth on Schedule 6.7;
(kn) Agent Domestic Parent, Subsidiary Borrower and Irish Borrower shall, in the aggregate, have Excess Availability and Qualified Cash in an amount of not less than [*] after giving effect to the initial extensions of credit under the Domestic Loan Agreement, this Agreement and the Irish Loan Agreement;
(o) Agents shall have completed its business, legal, and their collateral due diligence, including a collateral audit and review of each of Subsidiary Borrower’s, Servicer’s, 's books and Borrower’s Subsidiaries’ Books, a review of Servicer’s records and Borrower’s collateral valuation methods, verification of each of Loan Party’s Subsidiary Borrower's representations and warranties concerning Collateral to Agentthe Lender Group, the results of which shall be satisfactory to the Agents;
(p) Agent shall have completed its business and audit of each of Borrower’s and Servicer’s systems and controlslegal due diligence, the results of which shall be satisfactory to Agent;
(lq) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Subsidiary Borrower's senior management, the results of which are satisfactory to Agent in its sole discretion;
(mr) Agent shall have received the Closing Date Business Plan;
(n) Subsidiary Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(os) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction Agent shall have received copies of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Subsidiary Borrower's material leases, Borrower’s Subsidiaries financing agreements, supplier agreements, transition services agreements, and Servicer Intellectual Property licenses, together with a certificate of the Secretary of Subsidiary Borrower certifying each such document as being a true, correct, and complete copy thereof;
(t) Subsidiary Borrower 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 Person Subsidiary Borrower of the this Agreement or any other UK Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)thereby; and
(su) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Agent.
Appears in 1 contract
Sources: Loan Agreement (Palm Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of each the Lender Group (or any member thereof) to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each LenderAgent, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Third Restatement Closing Date shall have received a Filing Authorization Letteroccur on or before March 29, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2006;
(b) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall then be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lender,Fee Letter; and
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,Ratification Agreement; and
(iii) Control Agreements with respect to all Deposit Accounts a consent under the Intercreditor Agreement between Agent and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for Term Loan Agent approving the account of Borrower),
(iv) transactions contemplated hereby and under the Disbursement Letter for the initial Advance,
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Term Loan Pricing AgreementAmendment.
(c) GE Capital shall have entered into an Assignment and Acceptance (the “GE Capital Assignment”) with WFF (and duly acknowledged and agreed by Borrower), in form and substance satisfactory to WFF, pursuant to which, prior to the effectiveness of this Agreement on the Third Restatement Closing Date, (i) GE Capital shall have sold and assigned to WFF, and WFF and shall have purchased and assumed from GE Capital, all the Existing Advances and Commitments of GE Capital under the Existing Loan Agreement, and (ii) Borrower shall release GE Capital of all claims and liabilities under the Loan Documents;
(d) Immediately after effectiveness of the GE Capital Assignment, and prior to the effectiveness of this Agreement on the Third Restatement Effective Date, WFF shall have entered into an Assignment and Acceptance (the “WFF Assignment”) with Fortress, pursuant to which WFF shall have sold and assigned to Fortress, and Fortress shall have purchased and assumed from WFF, Commitments of WFF under the Existing Loan Agreement in an amount equal to $17,500,000, together with a pro rata share of the Existing Advances with respect thereto;
(e) Agent shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such PersonBorrower’s Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(df) Agent shall have received copies of the Borrower’s Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Third Restatement Closing Date, certified by an Authorized Personthe Secretary of Borrower or a certificate from the Secretary of Borrower certifying that there have been no amendments or other modifications to Borrower’s Governing Documents since the Closing Date;
(eg) Agent shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Third Restatement Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fh) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Third Restatement Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such jurisdictions;
(i) Agent shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor’s Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(j) Agent shall have received copies of each Guarantor’s Governing Documents, as amended, modified, or supplemented to the Third Restatement Closing Date, certified by the Secretary of such Guarantor or a certificate from the Secretary of such Guarantor certifying that there have been no amendments or other modifications to such Borrower’s Governing Documents since last delivered to Agent and certified by the Secretary of such Guarantor;
(k) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Third Restatement Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(gl) [INTENTIONALLY OMITTED]Agent shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Third Restatement Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdiction;
(hm) Agent shall have received an opinion of Obligors’ counsel to each Loan Party, substantially in the form of the opinion delivered on the Closing Date and otherwise in form and substance satisfactory to Agent;
(i) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(jn) Agent shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Borrower) that all tax returns required to be filed by each Loan Party Borrower and its Subsidiaries have been timely filed and all taxes upon any Loan PartyBorrower, its Subsidiaries, or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agent;
(lo) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) a certificate from the chief financial officer of Borrower with respect a copy of the Projections most recently delivered to the Loan Parties Lenders prior to the Third Restatement Closing Date (which Projections shall include projections for the forthcoming 6 months, month by month) attached thereto and each certifying that such Projections are still in effect and continue to represent Borrower’s good faith best estimate of the Executive Officers and of specified officers of Obligors’ future performance for the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretionperiods covered thereby;
(m) Agent shall have received the Closing Date Business Plan;
(np) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement (it being understood that all outstanding Lender Group Expenses shall be charged to the Loan Account, which amounts shall constitute Existing Advances, immediately prior to the Third Restatement Closing Date);
(q) The Lenders shall have received an updated appraisal of the STAC Value of the Stations, the results of which shall be satisfactory to the Lenders;
(r) Agent shall have received copies of an amendment to the Term Loan Agreement (the “Term Loan Amendment”), which shall be in form and substance satisfactory to the Lenders, together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and complete copy thereof;
(s) Agent shall have received satisfactory evidence that all of the conditions precedent to the effectiveness of the Term Loan Amendment have been (or concurrently are being) satisfied or waived by the Term Loan Agent;
(t) Borrower shall have requested an initial Advance on the Third Restatement Closing date in an amount equal to $10,000,000 plus accrued interest on, fees payable (including any prepayment fee) and expenses relating to the Term Loan to be used as a prepayment of the Term Loan in accordance with the Fee Letters Term Loan Amendment (the “Term Loan Prepayment Advance”); the parties hereto hereby agree that such Term Loan Prepayment Advance shall be used and this Agreementapplied for such prepayment of the Term Loan (and Agent and Lenders shall be satisfied that, in each caseconcurrently with the effectiveness hereof on the Third Restatement Effective Date, to such Term Loan Prepayment Advance is so used and applied as a prepayment of the extent then due and payableTerm Loan);
(ou) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Borrower 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 Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent thereby;
(v) The Lenders shall have received evidence, in form satisfactory evidence that Affiliation Agreements have been signed with The CW Television Network or MyNetworkTV on terms and substance conditions satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)Lenders; and
(sw) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder no Material Adverse Change shall have been delivered, executed, or recorded and shall be occurred (as determined in form and substance satisfactory to Agent (the approval sole discretion of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereundereach Lender).
Appears in 1 contract
Sources: Loan and Security Agreement (Acme Communications Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of each the Lender Group (or any member thereof) to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each LenderAgent, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) the Closing Date shall occur on or before June 25, 2003;
(b) Agent shall have received a Filing Authorization Letterall financing statements required by Agent, duly executed or otherwise authorized by Borrower Borrower, and Servicer, together with appropriate Agent shall have received evidence satisfactory to it of the filing of all such financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateralstatements;
(bc) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderCash Management Agreements,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsControl Agreements,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Disbursement Letter,
(iv) the Disbursement Letter for the initial AdvanceDue Diligence Letter,
(v) the Fee LettersLetter,
(vi) the Parent GuarantyMortgage,
(vii) the Perfection Officers' Certificate,
(viii) releases the Patent Security Agreement, along with a collateral assignment agreement with respect to each United States patent owned by Borrower and terminations confirmation (or other evidence reasonably satisfactory to Agent) of all security interests, liens the filing of such collateral assignment agreement with the United States Patent and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by LenderTrademark Office, and
(ix) the Loan Pricing Trademark Security Agreement., along with a collateral assignment agreement with respect to each United States trademark and tradename owned by Borrower and confirmation (or other evidence reasonably satisfactory to Agent) of the filing of such collateral assignment agreement with the United States Patent and Trademark Office;
(cd) Agent shall have received a certificate from an Authorized Person the Secretary of each Loan Party Borrower (i) attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, same and (iiiii) attesting to certifying the incumbency names and true signatures of such specific the officers of such PersonBorrower authorized to sign each Loan Document to which it is a party;
(de) Agent shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ef) Agent shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(h) Agent shall have received an opinion a certificate of counsel to each Loan Partyinsurance, in together with the endorsements thereto, as are required by SECTION 6.7, the form and substance of which shall be reasonably satisfactory to Agent;
(i) Agent shall have received Collateral Access Agreements with respect to each of the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificatelocations leased by Borrower set forth on SCHEDULE 3.1(I);
(j) Agent shall have received an opinion of Borrower's counsel in form and substance reasonably satisfactory to Agent;
(k) Agent shall have received evidence reasonably satisfactory to it (including a certificate of an Authorized Personthe chief financial officer of Borrower) that all tax returns required to be filed by each Loan Party Borrower have been timely filed and all taxes upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(kl) Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(m) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each Borrower's books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s 's representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsthe Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an inspection of each of the locations where Inventory is located, the results of which shall be reasonably satisfactory to Agent, (iii) a review of all Material Contracts, (iv) a review of all substantive documents to be executed in connection with any Approved Acquisitions to the extent such documents exist (even if only in draft form) prior to the Closing Date, and (v) receipt and review of an Enterprise Value of Borrower, the results of which shall be reasonably satisfactory to Lender Group;
(ln) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower's senior management, the results of which are reasonably satisfactory to Agent in its sole discretion;
(mo) Agent shall have received an appraisal of the Closing Date Business PlanNet Liquidation Percentage applicable to Borrower's Inventory and an appraisal of Borrower's Equipment, the results of which shall be reasonably satisfactory to Agent;
(np) Agent shall have received Borrower's financial projections, together with a certificate of the chief financial officer of Borrower stating, on behalf of Borrower, that the financial projections have been prepared on a reasonable basis and in good faith and are based on reasonable assumptions and the best information available;
(q) Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(or) Other than Agent shall have received (i) appraisals of the Eligible Real Property Collateral satisfactory to Agent, and (ii) mortgagee title insurance policies (or marked commitments to issue the same) for the Eligible Real Property Collateral issued by a title insurance company reasonably satisfactory to Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent that the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance reasonably satisfactory to Agent;
(s) Agent shall have received a phase-I environmental report and a real estate survey with respect to qualifications each parcel composing the Eligible Real Property Collateral; the environmental consultants and surveyors retained for such reports or surveys, the scope of the reports or surveys, and the results thereof shall be reasonably acceptable to conduct business in jurisdictions Agent;
(other than such Person’s jurisdiction t) Agent shall have received copies of organization) in which such Person’s failure to be duly qualified or licensed would not cause a each Material Adverse EffectContract, each of which shall be reasonably satisfactory to Agent, together with a certificate of an officer of Borrower certifying, on behalf of Borrower, Borrower’s Subsidiaries that each such document as being a true, correct, and Servicer complete copy thereof;
(u) Borrower shall have (i) received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the Eligible Real Property Collateral, the plasma collection centers, the execution and delivery by such Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated hereby and thereby or for the conduct and (ii) delivered copies of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory each such document to Agent, together with a certificate of Borrower stating that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans no other license, approval or any other actions required by any Governmental Authority is necessary in California and to conduct its order for the operation of Borrower's business;
(pv) Agent shall have received evidencea certificate from the chief executive officer or the chief financial officer of Borrower (or, in form and substance satisfactory to Agent, the case of the establishment signatures of the Collection Account Auhtorized Persons of Borrower, the Secretary) certifying, on behalf of Borrower, (i) as to (A) the truth and accuracy of the Trust Accountrepresentations and warranties of Borrower contained in SECTION 5 and (B) the absence of any Default or Events of Default, (ii) that after giving effect to the incurrence of Indebtedness under this Agreement, Borrower is Solvent, and (iii) the perfection names and true signatures of the Trustee’s LiensAuthorized Persons of Borrower;
(qw) Agent shall have received an irrevocable initial request for an Advance a certificate from the chief executive officer or issuance the chief financial officer of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement)certifying, on behalf of the DZ Secured PartiesBorrower that there exists no claim, of the DZ Trustee’s lien onaction, and security interest in and tosuit, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Dateinvestigation, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Datelitigation or proceeding, pending or, to the Trusteeknowledge of Borrower, for the benefit of each member of the Lender Group, threatened in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment any court or before any arbitrator or governmental instrumentality which relates to this Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred which is reasonably likely to Servicer, all of the DZ Borrower’s right, title, and interest result in and to the Purchased Loans (as defined therein)a Material Adverse Change; and
(sx) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Agent.
Appears in 1 contract
Sources: Loan and Security Agreement (Nabi Biopharmaceuticals)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of credit provided for hereunder Initial Advance, is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent Lender (the making of such initial extensions of credit Initial Advance by a Lender being conclusively deemed to be its satisfaction or waiver of the following), of each of the following conditions precedent)::
(a) Agent Lender shall have received a Filing Authorization Letter, duly executed by Borrower Borrower, TLOP and ServicerParent, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of AgentLender, desirable to perfect the Trustee’s Lender's Liens in and to the Collateral;
(b) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderCash Management Agreements,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsControl Agreements,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or the Disbursement Letter for the benefit of, Borrower (or Servicer, for the account of Borrower)Initial Advance,
(iv) the Disbursement Letter for the initial AdvanceFee Letter,
(v) the Fee LettersGuaranty,
(vi) the Parent GuarantyPledge Agreements,
(vii) the Perfection Certificate,a Subordination Agreement from each holder of Subordinated Debt (including Parent and TLOP), and copies of all documents evidencing or governing all Subordinated Debt, and
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Loan Pricing Servicing Agreement.;
(c) Agent Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party Parent (i) attesting to the resolutions of such Person’s Parent's Board of Directors authorizing the Borrower's execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) authorizing specific officers of such Person Parent, on behalf of Borrower, to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;Parent; LOAN AND SECURITY AGREEMENT - Page 29 --------------------------
(d) Agent Lender shall have received a certificate from the Secretary of Parent (i) attesting to the resolutions of Parent's Board of Directors authorizing Parent's and TLOP's execution, delivery, and performance of the Loan Documents to which each is a party, (ii) authorizing specific officers of Parent to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of Parent;
(e) Lender shall have received copies of the Borrower's, Parent's and TLOP's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Person;
(ef) Agent Lender shall have received a certificate certificates of status with respect to each Loan PartyBorrower, Parent and TLOP, each dated within 10 days of the Closing Date, such certificate certificates to be issued by the appropriate officer officers of the jurisdiction of organization of such PersonBorrower, TLOP and Parent, as applicable, which certificate certificates shall indicate that such Person each of Borrower, TLOP and Parent, as applicable, is in good standing in such jurisdictionjurisdictions;
(fg) Agent Lender shall have received certificates of status with respect to Borrower, TLOP and Parent, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower and Parent) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower each of Borrower, TLOP and Parent, as applicable, is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender;
(i) Lender shall have received a Collateral Access Agreement with respect to the chief executive office of Borrower;
(j) Lender shall have received an opinion of Borrower's counsel to each Loan Party, in form and substance satisfactory to AgentLender;
(ik) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Person) that all tax returns required to be filed by each Loan Party Parent, TLOP, Borrower and its Subsidiaries have been timely filed and all taxes upon any Loan PartyParent, TLOP, Borrower or their respective Subsidiaries' properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(kl) Agent Lender shall have completed its business, legal, and collateral due diligence, including a collateral audit audit, field exam and review of each Borrower's and its Subsidiaries' Books and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s 's representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsLender, the results of which shall be satisfactory to AgentLender;
(lm) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Guarantors, the results of which are satisfactory to Agent Lender in its sole discretion;; LOAN AND SECURITY AGREEMENT - Page 30 --------------------------
(mn) Agent Lender shall have received the Borrower's Closing Date Business Plan;
(no) Lender shall have received and approved Borrower's Required Procedures;
(p) Borrower shall have paid or shall pay with the Initial Advance all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(oq) Other Lender shall have received evidence satisfactory to Lender that, as of the Closing Date, the sum of Parent's stockholder's equity plus Subordinated Debt is not less than with respect $6,000,000.00, and the sum of Borrower's member's equity plus Borrower's Subordinated Debt owing to qualifications Parent is not less than $3,250,000;
(r) Lender shall have received evidence satisfactory to Lender that Borrower holds a currently effective license authorizing Borrower to purchase receivables from account debtors residing in New Jersey and to conduct its business in jurisdictions as contemplated by this Agreement;
(other than such Person’s jurisdiction of organizations) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, Borrower and each of Borrower, Borrower’s its Subsidiaries and Servicer 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 Person Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)thereby; and
(st) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Sources: Loan and Security Agreement (Velocity Asset Management Inc)
Conditions Precedent to the Initial Extension of Credit. The obligation of each the Lender Group (or any member thereof) to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each LenderAgent, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) the Closing Date shall occur on or before January 23, 2003;
(b) Agent shall have received a Filing Authorization Letterand filed all financing statements and PPSA registration statements required by Agent, duly executed or otherwise authorized by Borrower or any Guarantor, and Servicer, together with appropriate Agent shall have received evidence reflecting the filing of all such financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the CollateralPPSA registration statements;
(bc) Agent shall have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderCash Management Agreements,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsControl Agreements,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Canadian Guaranty,
(iv) the Disbursement Letter for the initial AdvanceCanadian Security Agreement,
(v) the Fee LettersContribution Agreement,
(vi) the Parent GuarantyDisbursement Letter,
(vii) the Perfection CertificateDue Diligence Letter,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, andFee Letter,
(ix) the Loan Pricing Agreement.Mortgages,
(cx) the Officers' Certificate,
(xi) the UCC/PPSA Filing Authorization Letter,
(xii) the Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank and all promissory notes pledged thereunder as well as allonges with respect thereto endorsed in blank, and
(xiii) the Intercreditor Agreement;
(d) Agent shall have received a certificate from an Authorized Person the Secretary of each Loan Party Borrower (i) attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, same and (iiiii) attesting to certifying the incumbency names and true signatures of such specific the officers of such PersonBorrower authorized to sign each Loan Document to which Borrower is a party;
(de) Agent shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ef) Agent shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(h) Agent shall have received a certificate from the Secretary of each Guarantor (i) attesting to the resolutions of Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which Guarantor is a party and authorizing specific officers of Guarantor to execute the same and (ii) certifying the names and true signatures of the officers of such Guarantor authorized to sign each Loan Document to which such Guarantor is a party;
(i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of Guarantor;
(j) Agent shall have received a certificate of status with respect to Guarantor (other than Eastside Coal Company, Inc.), dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Guarantor, which certificate shall indicate that Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect to Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Guarantor is in good standing in such jurisdictions;
(l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by SECTION 6.7, the form and substance of which shall be satisfactory to Agent;
(m) [intentionally omitted];
(n) Agent shall have received an opinion of the Loan Parties' counsel to each Loan Party, in form and substance satisfactory to Agent;
(i) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(jo) Agent shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Borrower) that all tax returns required to be filed by each Loan Party Borrower have been timely filed and all taxes upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(kp) Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(q) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each Borrower's books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s 's representations and warranties to Agentthe Lender Group, (ii) environmental reports on the Oil and Gas Properties of Borrower and Guarantors and (iii) a takeover audit of each which will include, among other things, a verification that all of Borrower’s 's and Servicer’s systems Guarantors' production taxes and controlsroyalty payments are current, verification of Borrower's and Guarantors' cash balances (including the sources of such cash) and a calculation of the Borrowing Base after updating the two-year NYMEX Strip Price and rolling forward the production volumes of Borrower and Guarantors, in each case the results of which shall be satisfactory to Agent;
(lr) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower's senior management, the results of which are satisfactory to Agent in its sole discretion;
(ms) Agent shall have received (i) Borrower's Closing Date Business Plan, (ii) evidence satisfactory to it that the debt and capital structure of Borrower and its Subsidiaries after giving effect to the Restructuring and the initial Advances under this Agreement, is consistent with the Closing Date Business PlanPlan and the projections of Borrower and its Subsidiaries previously delivered to Agent and (iii) financial reports of Borrower and its Subsidiaries for the month ending immediately prior to the Closing Date;
(nt) Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(ou) Other than Agent shall have received (i) updated land records and/or title searches and abstracts of Oil and Gas Properties of Borrower and Newco Canada, the review of which shall be satisfactory to Agent, (ii) updated title opinions of such Oil and Gas Properties with respect to qualifications the Hydrocarbon Interests therein of Borrower and Newco Canada and (iii) Mortgages on such Oil and Gas Properties that are valid and enforceable first priority mortgage Liens on such Oil and Gas Properties free and clear of all defects and encumbrances except Permitted Liens;
(v) Lenders shall have received the Initial Reserve Report, which shall be satisfactory to conduct business Lenders;
(w) Agent shall have received satisfactory evidence verifying all production taxes and royalty payments pertaining to each well comprising a part of the Oil and Gas Properties are current;
(x) Agent shall have received satisfactory evidence that the Newco Canada Transfer shall have been consummated in jurisdictions compliance with all applicable laws;
(y) Agent shall have received satisfactory evidence that Borrower shall have consummated the PrimeWest Transaction pursuant to the terms and conditions of the PrimeWest Agreement and in compliance with all applicable laws and no terms or provisions set forth in the PrimeWest Agreement shall have been amended, waived or otherwise modified without the prior written consent of Agent;
(z) the Exchange Offer shall have been consummated pursuant to Borrower's Offer to Exchange, dated December 9, 2002, as amended by Supplement No. 1 to the Exchange Offer dated January 15, 2003, in compliance with all applicable laws and no terms or provisions set forth in such Offer to Exchange shall have been amended, waived or otherwise modified without the prior written consent of Agent;
(aa) Agent shall have received evidence that (i) Borrower shall have deposited funds sufficient to effect a redemption, on terms satisfactory to Agent, of the Firstar Notes not otherwise exchanged or canceled pursuant to the Exchange Offer and shall have effected such redemption of such Firstar Notes in compliance with all applicable laws and pursuant to documents satisfactory to Agent (such redemption, the "FIRSTAR HOLDOVER REDEMPTION") and (ii) immediately upon the deposit of such funds, the trustee of the Firstar Notes shall have terminated, discharged, and released its Liens and mortgages on all of Borrower's and its Subsidiaries' properties and assets and shall have delivered and/or authorized the filing of UCC and PPSA termination statements, discharges or release or mortgages and such other than documentation evidencing such Person’s jurisdiction termination, discharge and release;
(bb) Borrower shall have entered into the New Notes Indenture, the terms and conditions of organizationwhich are set forth in Borrower's Offer to Exchange, dated December 9, 2002, as amended by Supplement No. 1 to the Exchange Offer dated January 15, 2003, which New Notes Indenture shall be in compliance with all applicable laws;
(cc) Agent shall have received evidence that (i) Borrower shall have deposited funds sufficient to effect a redemption, on terms satisfactory to Agent, of the Norwest Notes and shall have effected such redemption of the Norwest Notes in which compliance with all applicable laws and pursuant to documents satisfactory to Agent (such Person’s failure redemption, the "NORWEST REDEMPTION") and (ii) immediately upon the deposit of such funds, the trustee of the Norwest Notes shall have terminated, discharged and released its Liens and mortgages on all of Borrower's and its Subsidiaries' properties and assets and shall have delivered and/or authorized the filing of UCC and PPSA termination statements, discharges or releases or mortgages and such other documentation evidencing such termination, discharge and release;
(dd) Agent shall have received evidence that Grey Wolf shall have (i) entered into a termination and release agreement with respect to be the Grey Wolf Credit Facility and all related documents, duly qualified executed by Grey Wolf and Mirant Canada Energy Capital, Ltd., (ii) repaid in full all Indebtedness under the Grey Wolf Credit Facility, as well as all fees and expenses related thereto and (iii) caused Mirant Canada Energy Capital, Ltd. to terminate, discharge and release its Liens and mortgages on Grey Wolf's properties and assets and shall have delivered and/or authorized the filing of PPSA termination statements, discharges or licensed would not cause a releases of mortgages and such other documents evidencing such termination, discharges and releases;
(ee) no Material Adverse EffectChange shall have occurred;
(ff) Agent shall have received evidence that Borrower shall have entered into Commodity Hedging Agreements with respect to its Hydrocarbon production with one or more counterparties rated investment grade by ▇▇▇▇▇'▇ and Standard & Poor's, or the equivalent by a rating agency acceptable to Agent or with a counterparty otherwise reasonably acceptable to Agent, with the aggregate notional volumes of Hydrocarbons covered by such Commodities Hedging Agreements constituting not less than 25% and not more than 75% of the aggregate amount of Borrower's estimated Hydrocarbon production volumes on an mcf equivalent basis (where one barrel of oil is equal to six mcf of gas) for the succeeding six calendar months after the Closing Date from Oil and Gas Properties classified as Proved -55- Developed Producing Reserves in the Initial Reserve Report plus the estimated production from anticipated drilling by Borrower or its Subsidiaries during such succeeding six months;
(gg) Agent shall have received and reviewed information with respect to all material litigation of Borrower and its Subsidiaries, and shall be satisfied with the results of its review;
(hh) Agent shall have received fully executed copies of each of Borrowerthe Material Contracts, Borrower’s Subsidiaries the New Notes Documents and Servicer the agreements, documents or instruments related to the Firstar Holdover Redemption, the Norwest Redemption and the Newco Canada Transfer, together with a certificate of the Chief Executive Officer of Borrower certifying each such document as being a true, correct, and complete copy thereof and that such agreements, documents or instruments remain in full force and effect and that none of the Loan Parties has breached or defaulted in any of its obligations under such agreements;
(ii) Borrower shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the Restructuring and the execution and delivery by such Person Borrower and each Guarantor of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, Restructuring and security interest in hereby and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)thereby; and
(sjj) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to and the initial Advance hereunder Restructuring shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Agent.
Appears in 1 contract
Sources: Loan and Security Agreement (Abraxas Petroleum Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance under this Agreement (or otherwise to extend any credit provided for hereunder hereunder) is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent Lender (the making of such initial extensions extension of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the following), of each of the conditions precedent):precedent set forth below:
(a) Agent Lender shall have received a UCC Filing Authorization Letter, duly executed by Borrower and ServicerBorrower, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of AgentLender, desirable to perfect the TrusteeLender’s Liens in and to the Collateral, and Lender shall have received searches reflecting the filing of all such financing statements;
(b) Agent Lender shall have received each of the following documents, in form and substance reasonably satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lender,this Agreement;
(ii) the Closing CertificateCertificates;
(iii) the Collection Account Agreement and the other Control Agreements, certifying if any;
(iv) the Intercompany Subordination Agreement, together with copies of the executed Intercompany Subordinated Notes and all documents executed in connections therewith;
(v) the Servicing Agreement; and
(vi) the Fortegra Guaranty;
(c) Lender shall have received copies of Borrower’s and Fortegra’s Governing Documents, as to the accuracy and completenessamended, modified, or supplemented as of the Closing Date, of (A) certified by the Required ProceduresSecretary, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, Assistant Secretary or for the benefit of, Borrower (or Servicer, for the account of Borrower),
(iv) the Disbursement Letter for the initial Advance,
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Loan Pricing Agreement.
(c) Agent shall have received a certificate from an Authorized Person of each Loan Party (i) attesting to the resolutions of such Person’s Board of Directors authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person is a party, (ii) authorizing specific officers of such Person to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers similar officer of such Person;
(d) Agent Lender shall have received copies of the Governing Documents of each Loan Party, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Person;
(e) Agent shall have received a certificate certificates of status with respect to each Loan PartyBorrower and Fortegra, each dated within 10 days as of the Closing Datea recent date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate that such Person is in good standing (if applicable) in such jurisdiction;
(fe) Agent Lender shall have received certificates a certificate of status insurance, together with respect the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be reasonably satisfactory to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction Lender;
(other than such Person’s jurisdiction of organizationf) in which Borrower’s failure to be duly qualified or licensed would cause a Material Adverse Effect, which certificates shall indicate that Borrower is in good standing in such other jurisdiction;[RESERVED]
(g) [INTENTIONALLY OMITTED]Lender shall have received a certificate from an Authorized Financial Person, certifying (i) as to the truth and accuracy in all material respects on and as of the Closing Date of the representations and warranties of Borrower contained in Section 5 of this Agreement, (ii) the absence of any Defaults or Events of Default, and (iii) that after giving effect to the incurrence of Indebtedness under this Agreement and the other transactions contemplated by this Agreement, Borrower is Solvent;
(h) Agent Lender shall have received an opinion or opinions of Borrower’s and Fortegra’s counsel to each Loan Party, in form and substance reasonably satisfactory to AgentLender;
(i) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Person) that all tax returns required to be filed by each Loan Party Borrower have been timely filed and all taxes upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(kj) Agent Lender shall have completed its business, legal, and collateral due diligence, including a review of the legal structure of Borrower, LOTS, Fortegra and their Affiliates, a collateral audit and review of each the books and records of Borrower and any of their Affiliates with business operations similar to those of Borrower’s, Servicer’s, and Borrowera collateral update review regarding those Premium Finance Agreements that Borrower intends to include as Eligible Premium Finance Agreements on the Borrowing Base Certificate delivered in connection with Lender’s Subsidiaries’ Booksinitial Advance, a review of Servicer’s and Borrower’s their collateral valuation methods, verification of each of Loan Partysuch Person’s representations and warranties to AgentLender, and audit verification of third-party service providers, in each of Borrower’s and Servicer’s systems and controlscase, the results of which shall be satisfactory to AgentLender;
(lk) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Fortegra, LOTS, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower, the results of each of which are satisfactory to Agent Lender in its sole discretion;
(ml) Agent Lender shall have received (i) Fortegra’s and Borrower’s audited financial statements for their fiscal year ended December 31, 2009, (ii) Fortegra’s unaudited consolidated balance sheet and income statement for the month ended April 30, 2010, covering such Person’s and its Subsidiaries’ operations during such period and the year-to date period ending thereon, and (iii) Borrower’s unaudited balance sheet and operating summary for the month ended April 30, 2010, covering such Person’s and its Subsidiaries’ operations during such period and the three-month period ending thereon;
(m) Lender shall have received Borrower’s Closing Date Business Plan;
(n) Borrower shall have paid pay all Lender Group Expenses then due and payable and invoiced at least one Business Day prior to the Closing Date that are incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(o) Other than Lender shall have received Borrower’s Required Procedures, which Required Procedures shall be consistent with those previously represented to Lender and shall be acceptable to Lender in its sole discretion;
(p) Lender shall have received evidence satisfactory to Lender either that any Person having a Lien (except for Permitted Liens, if any) with respect to qualifications to conduct business in jurisdictions (other than the assets of Borrower shall have released such Person’s jurisdiction Lien or that such Lien shall be automatically terminated upon the funding of organization) in which such Person’s failure the Advances to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries made on the Closing Date;
(q) Borrower and Servicer Fortegra shall have received all other licenses, approvals or evidence of other actions required by any Governmental Authority Authority, if any, in connection with the execution and delivery by such Person Borrower or Fortegra of the Loan Documents to which it is a party or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000thereby;
(r) Agent Lender shall have received evidence, in form and substance satisfactory to Agent, evidence that as of the date of the initial Advance, Borrower has a Tangible Net Worth of not less than $8,000,000;
(s) Lender’s counsel shall have received and reviewed all standard documentation evidencing, governing, securing and guaranteeing the Premium Finance Agreements, and been satisfied such documentation provides Borrower and Lender with appropriate rights and remedies to enforce any necessary collection actions with respect to such Premium Finance Agreements;
(i) At the time of such initial Advance, the aggregate outstanding amount funded by Borrower out of its own funds under existing Premium Finance Agreements shall be not less than $5,000,000, and (ii) the amount of such initial Advance shall not exceed ninety percent (90%) of the aggregate Net Balance of those Eligible Premium Finance Agreements that that were not included in the calculation necessary to satisfy the condition precedent set forth in the immediately preceding clause (i); and
(u) As of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(s) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder ▇▇ ▇▇▇▇▇▇ shall have been delivered, executed, or recorded assumed the position of Director of Finance and shall be in form and substance satisfactory to Agent (the approval Operations of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Borrower.
Appears in 1 contract
Sources: Loan and Security Agreement (Fortegra Financial Corp)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent shall have received a Filing Authorization Letter, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed satisfaction of the conditions precedent set forth in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the CollateralSection 3.1 above;
(b) Agent Parent shall have received each the proceeds of the following documentsSenior Notes in an amount sufficient, together with the equity investment by ValueAct Capital in Seitel Holdings and Borrowers’ and their Subsidiaries’ cash on hand, to fully redeem and cancel the Existing Notes tendered for payment and to pay all merger consideration for the Acquisition and evidence thereof, reasonably satisfactory to Lender, shall have been delivered to Lender;
(c) The Existing Notes tendered for payment shall have been fully redeemed and cancelled;
(d) The Acquisition shall have been consummated and evidence thereof, reasonably satisfactory to Lender, shall have been delivered to Lender;
(e) Borrowers shall have Excess Availability of $20,000,000.00 on the Closing Date immediately after giving effect to the Acquisition and Lender shall have received evidence thereof, reasonably satisfactory to Lender;
(f) Lender shall have received the Parent Stock Pledge, in form and substance satisfactory to AgentLender in the exercise of its Permitted Discretion, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lender,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower),
(iv) the Disbursement Letter for the initial Advance,
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, ; and
(ix) the Loan Pricing Agreement.
(c) Agent shall have received a certificate from an Authorized Person of each Loan Party (i) attesting to the resolutions of such Person’s Board of Directors authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person is a party, (ii) authorizing specific officers of such Person to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(d) Agent shall have received copies of the Governing Documents of each Loan Party, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Person;
(e) Agent shall have received a certificate of status with respect to each Loan Party, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate that such Person is in good standing in such jurisdiction;
(f) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction (other than such Person’s jurisdiction of organization) in which Borrower’s failure to be duly qualified or licensed would cause a Material Adverse Effect, which certificates shall indicate that Borrower is in good standing in such other jurisdiction;
(g) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received an the opinion of Dechert LLP, as counsel to each Loan PartySeitel Holdings, in form and substance satisfactory to AgentLender in the exercise of its Permitted Discretion;
(h) the Senior Notes shall (i) Agent shall have received been issued pursuant to the Approved Forms and Required Procedures, all Senior Note Offering in form and substance reasonably satisfactory to AgentLender and its counsel in their Permitted Discretion, which shall also (ii) not mature, by their terms until at least 90 days after the Maturity Date, (iii) be attached as exhibits to the Closing Certificate;
(j) Agent shall have received satisfactory evidence (including a certificate general unsecured obligations of an Authorized Person) that all tax returns required to be filed by each Loan Party have been timely filed and all taxes upon any Loan Party, or their respective properties, assets, incomeParent, and franchises (including Real Property taxesiv) be effectively, sales taxes, but not contractually subordinated to all indebtedness and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agent;
(l) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to other obligations owing under the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretion;
(m) Agent shall have received the Closing Date Business Plan;
(n) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, Documents to the extent then due and payable;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person of the Loan Documents or with the consummation value of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account assets and the Trust Account, other collateral securing the Indebtedness and Obligations under the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); and
(s) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder).Documents
Appears in 1 contract
Sources: Loan and Security Agreement (Matrix Geophysical, Inc.)
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of credit provided for hereunder Initial Advance, is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent shall have received a Filing Authorization Letter, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral[INTENTIONALLY OMITTED];
(b) Agent Lender shall have received all financing statements required by Lender, duly executed by Borrower, and Lender shall have received searches reflecting the filing of all such financing statements;
(c) Lender shall have received each of the following documentsfollowing, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderCopyright Security Agreement,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsPatent Security Agreement,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained byTrademark Security Agreement, or for the benefit of, Borrower (or Servicer, for the account of Borrower),and
(iv) the Disbursement Letter for the initial Advance,Intercreditor Agreement;
(vd) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Loan Pricing Agreement.
(c) Agent Lender shall have received a certificate from an Authorized Person or the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent Lender shall have received a certificate certified by an Authorized Person that Borrower has provided Lender with true and correct copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Person;
(e) Agent shall have received a certificate of status with respect to each Loan Party, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate that such Person is in good standing in such jurisdiction;
(f) Agent Borrower shall have received certificates of status with respect to Borrower, each dated within 30 days any consents from ICGH or any other Person necessary for the consummation of the Closing Date, such certificates to be issued transactions contemplated by the appropriate officer of each jurisdiction (other than such Person’s jurisdiction of organization) in which Borrower’s failure to be duly qualified or licensed would cause a Material Adverse Effect, which certificates shall indicate that Borrower is in good standing in such other jurisdictionthis Agreement;
(g) [INTENTIONALLY OMITTEDintentionally omitted];
(h) Agent shall have received an opinion of counsel to each Loan Party, in form and substance satisfactory to Agent;
(i) Agent Lender shall have received the Approved Forms and Required Proceduresofficer's certificate required by Section 6.8, all in the form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent shall have received satisfactory evidence (including a certificate of an Authorized Person) that all tax returns required to be filed by each Loan Party have been timely filed and all taxes upon any Loan Party, or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to AgentLender;
(l) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent in its sole discretion;
(m) Agent shall have received the Closing Date Business Plan;
(ni) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer 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 Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)thereby; and
(sj) all other documents and legal matters Lender shall have received a certificate from an Authorized Person stating (i) that Borrower requires additional financing to fund its continued operations in connection a manner consistent with Article IV of the Merger Agreement, (ii) the amount of the requested Advance, (iii) that Borrower has received at least $7,000,000 of additional financing from ICGH on terms consistent with the transactions contemplated by this Agreement to be completed prior to requirements of Section 5.25 of the initial Advance hereunder shall have been deliveredMerger Agreement, executedand (iv) that Borrower is not in material breach of any of its representations, warranties, covenants or recorded and shall be in form and substance satisfactory to Agent (other agreements under the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Merger Agreement.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of credit provided for hereunder Loans, is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before May 31, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2013;
(b) Agent Lender shall have filed all financing statements and recorded, filed and registered such other documents necessary for Lender to perfect Lender’s Lien in the Collateral and shall have received confirmation of such filings, recordings and registrations;
(c) Lender shall have received this Agreement and each of the following documentsFinancing Documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment , and no Default or Event of Default shall exist as of the Closing Date and a Transferee Letter from each execution of such Lender,documents;
(iid) Lender shall have received the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvals,Fee;
(iiie) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower),
(iv) the Disbursement Letter for the initial Advance,
(v) the Fee Letters,
(vi) the Parent Guaranty,
(vii) the Perfection Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, and
(ix) the Loan Pricing Agreement.
(c) Agent Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party Borrower attesting to (i) attesting to the resolutions of such PersonBorrower’s Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person is a partyFinancing Documents, (ii) authorizing specific officers of such Person to execute the same, Borrower’s Governing Documents and (iii) attesting to the incumbency and signatures of such specific officers of such Personofficers;
(df) Agent shall have received copies of the Governing Documents of each Loan Party, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Person;
(e) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 30 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent Lender shall have received certificates the Budget, together with a combined balance sheet of status with respect to Borrower, each dated within 30 days effective as of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction (other than such Person’s jurisdiction of organization) in which Borrower’s failure to be duly qualified or licensed would cause a Material Adverse Effect, which certificates shall indicate that Borrower is in good standing in such other jurisdiction;
(g) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received an opinion such opinion(s) of Borrower’s counsel to each Loan Party, in form and substance satisfactory to AgentLender as Lender may reasonably request;
(i) Agent Borrower shall have received all licenses, approvals, consents or evidence of other actions required by any Person in connection with the Approved Forms execution and Required Procedures, all in form delivery by Borrower of this Agreement or any other Financing Document or with the consummation of the transactions contemplated hereby and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificatethereby;
(j) Agent Lender shall have received one or more certificates of insurance, together with the endorsements thereto, as are required by Section 6.08, the form and substance of which shall be satisfactory evidence (including a certificate of an Authorized Person) that all tax returns required to be filed by each Loan Party have been timely filed and all taxes upon any Loan Party, or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted ProtestLender;
(k) Agent No action, suit, investigation, litigation or proceeding before any arbitrator or Tribunal that could reasonably be expected to have a Material Adverse Effect shall be pending or threatened against Borrower;
(l) Lender shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controls, the results of which shall be satisfactory to Agent;
(l) Agent shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇), the results of which are satisfactory to Agent Lender in its sole discretion;
(m) Agent shall have received the Closing Date Business Plan;
(n) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(on) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Lender 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 Person duly executed copies of the Loan Documents or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement and Agent shall have received evidenceWarrant, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(po) Agent Lender shall have received evidenceduly executed copies of guaranties from each Guarantor, along with a pledge of securities from such Guarantors, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s LiensLender;
(qp) Agent Lender shall have received an irrevocable initial request for an Advance or issuance duly executed copies of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidencethe Subordination Agreement, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)Lender; and
(sq) all All other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before December 19, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2001;
(b) Agent Lender shall have received all financing statements required by Lender, duly executed by Borrower, and Lender shall have received searches reflecting the filing of all such financing statements, showing the Lender's Liens in a first priority position;
(c) Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderLockbox Agreement,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsControl Agreements,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Disbursement Letter,
(iv) the Disbursement Letter for the initial AdvanceDue Diligence Letter,
(v) the Fee LettersLetter,
(vi) the Parent Guaranty,
(vii) the Perfection CertificateValidity Agreements,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, andCash Management Agreements,
(ix) the Loan Pricing Servicing Agreement,
(x) the Officers' Certificate,
(xi) the Stock Pledge Agreements, covering one hundred percent (100%) of the Capital Stock of Borrower owned by Guarantor, together with all certificates representing the shares of Capital Stock pledged thereunder, as well as stock powers with respect thereto endorsed in blank,
(xii) the Collateral Agency Agreement,
(xiii) the Subordination Agreements, and
(xiv) the Approved Forms.
(cd) Agent Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent Lender shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ef) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent Lender shall have received certificates of status with respect to Borrower, each dated within 30 thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictionjurisdictions;
(g) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender;
(i) Lender shall have received an opinion of Borrower's counsel to each Loan Party, in form and substance satisfactory to Agent;
(i) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing CertificateLender;
(j) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Borrower) that all tax returns required to be filed by each Loan Party Borrower have been timely filed and all taxes upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(k) Agent Lender shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each Borrower's books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s 's representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsLender, the results of which shall be satisfactory to AgentLender;
(l) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower's senior management, the results of which are satisfactory to Agent Lender in its sole and absolute discretion;
(m) Agent Lender shall have received the Borrower's Closing Date Business Plan;
(n) Borrower shall have paid pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Borrower 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 Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its businessthereby;
(p) Agent Lender shall have received evidence, in form and substance evidence satisfactory to Agent, it that Borrower has received and retained capital contributions of at least $3,000,000.00 on or prior to the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s LiensClosing Date;
(q) Agent After giving effect to the Advances to be made on the Closing Date, Availability shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than be at least $25,000,000750,000.00;
(r) Agent Borrower shall have received evidencesubmitted proposed Approved Forms and Required Procedures to Lender, which shall have been approved by Lender and Lender's Counsel in form their sole and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein); andabsolute discretion;
(s) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of credit provided for hereunder Advance is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before December 31, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2002;
(b) Agent Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lenderthis Agreement,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsGuaranty,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)each Validity Guaranty,
(iv) each of the Disbursement Letter for the initial AdvanceParent Pledge Agreements, each duly executed, in form and substance satisfactory to Lender,
(v) the Fee LettersServicing Agreement,
(vi) the Parent GuarantyCollateral Assignment of Servicing Agreement, acknowledged by Servicer,
(vii) the Perfection CertificateRequired Procedures,
(viii) releases and terminations of all security interests, liens and encumbrances on the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests as may be required by Lender, andBorrower's Closing Date Business Plan;
(ix) the Loan Pricing Collection Account Agreement.,
(cx) Agent shall have received a certificate from an Authorized Person of the Collateral Agency Agreement, LOAN AND SECURITY AGREEMENT - Page 36 DALLAS2 939606V9 53877-00012
(xi) the Control Agreements,
(xii) the Hazardous Substances Indemnity Agreement,
(xiii) with respect to all Real Property, the following, in each Loan Party (i) attesting case with respect to such Real Property and in form and substance satisfactory to the resolutions Lender: (1) a Mortgage, in proper form for recording in the jurisdiction in which such Real Property is located, (2) a fully paid mortgagee's policy of title insurance, or commitment to issue same, issued by an insurer acceptable to Lender and insuring the Lien of such Person’s Board of Directors authorizing Mortgage as a valid and enforceable, first priority Lien in an amount not less than the execution, deliveryfair market value thereof, and performance of this Agreement and the subject to no encumbrances other Loan Documents than those, if any, as may be acceptable to which such Person is a partyLender in its sole discretion, (ii3) authorizing specific officers of such Person an environmental site assessment report, prepared by a credentialed environmental consultant acceptable to execute the sameLender, (4) a boundary survey, certified to the Lender and prepared by a surveyor acceptable to the Lender, and (iii5) attesting such other information, documentation, opinions, and certifications with respect to any such parcel of Real Property as may be reasonably requested by the incumbency and signatures of such specific officers of such PersonLender;
(dxiv) Agent shall have received copies of the Governing Documents of each Loan Obligated Party, K-W Properties and Servicer, in each case as amended, modified, or supplemented to the Closing Date, certified by an its secretary or other Authorized PersonPerson acceptable to Lender;
(exv) Agent shall have received a certificate from the secretary of each Obligated Party, K-W Properties and the sole member of Servicer, respectively, attesting to the resolutions of its Board of Directors authorizing its execution, delivery, and performance (or in the case of the sole member of Servicer, Servicer's execution, delivery and performance) of the Loan Documents to which it is a party and authorizing specific officers to execute the same;
(xvi) a certificate of status with respect to each Loan Obligated Party, each K-W Properties and Servicer, respectively, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the its jurisdiction of organization of such Personorganization, which certificate shall indicate that such Person it is in good standing in such jurisdiction;
(fxvii) Agent shall have received certificates of status with respect to Borrowereach Obligated Party, K-W Properties and Servicer, respectively, each dated within 30 10 days of the Closing Date, such certificates to be issued by the appropriate officer of the states of each jurisdiction (other than such Person’s its jurisdiction of organization) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower it is in good standing in such other jurisdictionjurisdictions;
(gxviii) [INTENTIONALLY OMITTED]releases and terminations of all security interests, liens and encumbrances on the Collateral, together such UCC-3 termination or partial release statements in connection therewith as may be required by Lender; LOAN AND SECURITY AGREEMENT - Page 37 DALLAS2 939606V9 53877-00012
(hxix) Agent a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall have received be satisfactory to Lender;
(xx) Borrower consents and agrees that Lender or Lender's representatives or agents may enter onto any premises where any of Borrower's Collateral is located at any time to inspect the Collateral, or to take possession of or remove any or all of the Collateral from such premises or to exhibit for sale and/or conduct one or more sales of the Collateral on such premises, and Borrower will not in any manner hinder, interfere, or prevent any of the foregoing;
(xxi) an opinion of Borrower's and Parent's counsel to each Loan Party, in form and substance satisfactory to Agent;Lender; and
(ixxii) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(jc) Agent Lender shall have filed all financing statements as required to perfect its security interest in the Personal Property Collateral, and shall have received searches, or other evidence satisfactory to Lender, reflecting the filing thereof;
(d) Lender shall have received satisfactory evidence (including a certificate of an Authorized Person) that all tax returns required to be filed by each Loan Party Borrower or Parent have been timely filed and all taxes upon any Loan Party, Borrower or Parent or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(ke) Agent Lender shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of each Borrower's and Parent's books and records and verification of Borrower’s, Servicer’s, 's and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s Parent's representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsLender under the Loan Documents, the results of which shall be satisfactory to AgentLender;
(lf) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower's senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(mg) Agent shall have received the Closing Date Business Plan;
(n) Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(o) Other than with respect to qualifications to conduct business in jurisdictions (other than such Person’s jurisdiction of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of Borrower, Borrower’s Subsidiaries and Servicer Each Obligated 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 Person of the Loan Documents to which it is a party or in connection with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent thereby;
(h) Parent shall have received evidenceall licenses, approvals or evidence of other actions required by any Governmental Authority in connection with lawfully performing its functions and duties as Servicer;
(i) Borrower's and Servicer's reporting systems shall be satisfactory to Lender; LOAN AND SECURITY AGREEMENT - Page 38 DALLAS2 939606V9 53877-00012
(j) Lender shall have received interim financial statements for Parent for the nine month period ending September 30, 2002, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(pk) Agent Lender shall have received evidencefinancial information in respect of Guarantor and personal financial information for each Validity Guarantor, in each case form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s LiensLender;
(ql) Agent Borrower's capital structure shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance be satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, Lender including, without limitation, stockholders equity (iincluding paid in capital and retained earnings) a fullyin an aggregate amount not less than $1,100,000;
(m) Borrower shall have implemented procedures satisfactory to Lender that will insure proper cut-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, off and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower reconciliation as of each month between the Closing Dateaccounts receivable aging report, general ledger and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)client summary reports; and
(sn) Borrower shall have paid all Lender Expenses incurred in connection with the transactions evidenced by this Agreement; and all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the following conditions precedent (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):set forth below:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before December 14, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2001;
(b) Agent Lender shall have received all financing statements required by Lender, duly executed by Borrower, and Lender shall have received searches reflecting the filing of all such financing statements;
(c) Lender shall have received each of the following documents, in form and substance satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such LenderControl Agreements, including the Pledge Agreement,
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsIntellectual Property Security Agreement,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)Disbursement Letter,
(iv) the Disbursement Letter for the initial AdvanceDue Diligence Letter,
(v) the Fee LettersLetter,
(vi) the Parent GuarantyMaster Assignment Agreement,
(vii) the Perfection Officers' Certificate,
(viii) releases and terminations of all security interests, liens and encumbrances on such documentation evidencing the Collateral (other than Permitted Liens), together with such UCC financing statement amendments terminating or partially releasing such security interests assignments under the Master Assignment Agreement as may be required are requested by Lender, and,
(ix) the Loan Pricing Security Agreement., and
(cx) Agent a Borrowing Base Certificate dated as of the Closing Date;
(d) Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent Lender shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ef) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent Lender shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such jurisdictions and which certificates (i) from the States of Louisiana and Alabama shall be dated within thirty (30) days of the Closing Date and (ii) from all other jurisdictionstates shall be dated on or after September 15, 2001;
(g) [INTENTIONALLY OMITTED]
(h) Agent Lender shall have received a certificate of insurance and a copy of the certificate of insurance issued in favor of the Collateral Agent, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender;
(i) Lender shall have received satisfactory evidence that Hibernia has delivered its notice of resignation as Collateral Agent;
(j) Lender shall have received an opinion of Borrower's counsel to each Loan Party, in form and substance satisfactory to AgentLender;
(ik) Agent shall have received the Approved Forms and Required Procedures, all in form and substance satisfactory to Agent, which shall also be attached as exhibits to the Closing Certificate;
(j) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Borrower) that all tax returns required to be filed by each Loan Party Borrower have been timely filed and all taxes upon any Loan Party, Borrower or their respective its properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(kl) Agent Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(m) Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each Borrower's books and records and verification of Borrower’s, Servicer’s, and Borrower’s Subsidiaries’ Books, a review of Servicer’s and Borrower’s collateral valuation methods, verification of each of Loan Party’s 's representations and warranties to Agent, and audit of each of Borrower’s and Servicer’s systems and controlsLender, the results of which shall be satisfactory to AgentLender, and (ii) satisfactory review by Lender of the Intercreditor Agreement, the Indenture Documents and the Hibernia Term Loan Agreement;
(ln) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower's senior management, the results of which are satisfactory to Agent Lender in its sole discretion;
(mo) Agent Lender shall have received appraisals of the Enterprise Valuation and the Quick Sale Valuation (including Borrower's corporate headquarters and Baton Rouge, Louisiana locations) acceptable to Lender;
(p) Lender shall have received Borrower's Closing Date Business Plan;
(nq) Borrower shall have paid all fees that are required to be paid on the Closing Date pursuant to the terms of the Fee Letter, plus all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(or) Other than To the extent requested by Lender, Lender shall have received a phase 1 environmental report and a real estate survey with respect to qualifications each parcel composing the Real Property Collateral; the environmental consultants and surveyors retained for such reports or surveys, the scope of the reports or surveys, and the results thereof shall be acceptable to conduct business in jurisdictions Lender;
(other than such Person’s jurisdiction s) Lender shall have received copies of organization) in which such Person’s failure to be duly qualified or licensed would not cause a Material Adverse Effect, each of the Borrower's Material Contracts, Borrower’s Subsidiaries together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and Servicer complete copy thereof;
(t) Borrower 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 Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent shall have received evidence, in form and substance satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(p) Agent shall have received evidence, in form and substance satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s Liens;
(q) Agent shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal to or greater than $25,000,000;
(r) Agent shall have received evidence, in form and substance satisfactory to Agent, that as of the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, including, without limitation, (i) a fully-executed payoff letter evidencing (A) the release by the DZ Trustee (as defined in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)thereby; and
(su) Lender shall have received the unqualified annual audited financial statements of Borrower prepared by Ernst & Young (without explanatory paragraphs) and such financial statements shall be satisfactory to Lender;
(v) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of Advance or L/C Advance (or otherwise to extend any credit provided for hereunder hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent and each Lender, of each of the following conditions precedent (set forth below or the making of such initial extensions of credit express written waiver thereof by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent):Lender:
(a) Agent the Closing Date shall have received a Filing Authorization Letteroccur on or before January 16, duly executed by Borrower and Servicer, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Trustee’s Liens in and to the Collateral2003;
(b) Agent Lender shall have received all financing statements required by Lender, and Lender shall have received searches reflecting the filing of all such financing statements;
(c) Lender shall have received each of the following documents, in form and substance reasonably satisfactory to AgentLender, duly executed, and each such document shall be in full force and effect:
(i) a Revolving Credit Note for each Lender listing a principal sum equal to such Lender’s Commitment as of the Closing Date and a Transferee Letter from each such Lender,Collateral Assignment;
(ii) the Closing Certificate, certifying as to the accuracy and completeness, as of the Closing Date, of (A) the Required Procedures, (B) the Approved Forms, (C) the Closing Date Business Plan, and (D) Borrower’s licenses and approvalsControl Agreements,
(iii) Control Agreements with respect to all Deposit Accounts and Securities Accounts maintained by, or for the benefit of, Borrower (or Servicer, for the account of Borrower)[Intentionally left blank],
(iv) the Disbursement Letter for the initial AdvanceCredit Card Agreements,
(v) the Fee LettersDisbursement Letter,
(vi) the Parent GuarantyDue Diligence Letter,
(vii) the Perfection CertificateEnvironmental Indemnity Agreement,
(viii) releases each Guaranty,
(ix) [Intentionally left blank],
(x) the Mortgages for the Real Property owned by GACC and terminations of all security interests, liens and encumbrances on Borrower's corporate headquarters,
(xi) the Collateral Officers' Certificate,
(other than Permitted Liens)xii) the Refinancing Letter Agreement, together with such a UCC financing statement amendments terminating assignment and other documentation evidencing the assignment by Existing Lender of its Liens in and to the properties and assets of Borrower or partially releasing such security interests any Guarantor,
(xiii) the Stock Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, including, without limitation, the shares of each Guarantor and the warrants issued by Nonni's Food Company, Inc., as may be required by Lenderwell as Stock powers with respect thereto endorsed in blank,
(xiv) the Trademark Security Agreements,
(xv) the Subsidiary Security Agreements, and
(ixxvi) a Consent to Assignment for each of the Loan Pricing Agreement.contracts listed on SCHEDULE 3.1(c)(xvi) (collectively the "ASSIGNED CONTRACTS"); and
(cd) Agent Lender shall have received a certificate from an Authorized Person the Secretary of each Loan Party (i) Borrower attesting to the resolutions of such Person’s Borrower's Board of Directors authorizing the its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Person Borrower is a party, (ii) party and authorizing specific officers of such Person Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person;
(de) Agent Lender shall have received copies of the Borrower's Governing Documents of each Loan PartyDocuments, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Personthe Secretary of Borrower;
(ef) Agent Lender shall have received a certificate of status with respect to each Loan PartyBorrower, each dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such PersonBorrower, which certificate shall indicate that such Person Borrower is in good standing in such jurisdiction;
(fg) Agent Lender shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of each jurisdiction the jurisdictions (other than such Person’s the jurisdiction of organizationorganization of Borrower) in which Borrower’s its failure to be duly qualified or licensed would cause constitute a Material Adverse EffectChange, which certificates shall indicate that Borrower is in good standing in such other jurisdictions;
(h) Lender shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same;
(i) Lender shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(j) Lender shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction;
(gk) [INTENTIONALLY OMITTED]Lender shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions;
(hl) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by SECTION 6.8, the form and substance of which shall be reasonably satisfactory to Lender;
(m) Lender shall have received an opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special California, Delaware and New York counsel to each Loan PartyBorrower and Guarantors, in form and substance reasonably satisfactory to Agent;
(i) Agent shall have received Lender, and an opinion of the Approved Forms general counsel of Borrower and Required Procedures, all Guarantors in form and substance reasonably satisfactory to Agent, which shall also be attached as exhibits to the Closing CertificateLender;
(jn) Agent Lender shall have received satisfactory evidence (including a certificate of an Authorized Personthe chief financial officer of Borrower) that all tax returns required to be filed by each Loan Party Borrower and its Subsidiaries have been timely filed and all taxes upon any Loan PartyBorrower, its Subsidiaries or their respective properties, assets, income, and franchises (including Real Property taxes, sales taxes, taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(ko) Agent Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(p) Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of each of Borrower’s's books and records (including, Servicer’s, and Borrower’s Subsidiaries’ Bookswithout limitation, a review of Servicer’s Borrower's payment or resolution of all material past due payables, the minute books for Borrower and Borrower’s collateral valuation methodsits Subsidiaries and the audit work papers for the year 2001), (ii) verification of each of Loan Party’s Borrower's representations and warranties to AgentLender, (iii) a review of the financial results of Borrower and its Subsidiaries for the quarter ended September 2002, and audit (iv) interviews of each loan officers for lenders to Affiliates of Borrower’s and Servicer’s systems and controls, the results of which all shall be reasonably satisfactory to AgentLender;
(lq) Agent Lender shall have received completed reference checks (including personal credit reports, tax lien and litigation histories) with respect to the Loan Parties and each of the Executive Officers and of specified officers of the Loan Parties (including without limitation ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇)Borrower's senior management, the results of which are reasonably satisfactory to Agent Lender in its sole discretion;
(m) Agent shall have received the Closing Date Business Plan;
(nr) Borrower shall have paid pay all Lender Group Expenses properly incurred in connection with the transactions evidenced by this Agreement and all fees payable in accordance with the Fee Letters and this Agreement, in each case, to the extent then due and payable;
(os) Other than with respect Lender shall have received mortgagee title insurance policies (or marked commitments to qualifications issue the same) for the Real Property Collateral owned by GACC and issued by a title insurance company reasonably satisfactory to conduct business in jurisdictions Lender (other than such Person’s jurisdiction of organizationeach a "MORTGAGE POLICY" and, collectively, the "MORTGAGE POLICIES") in which amounts reasonably satisfactory to Lender assuring Lender that the Mortgages on such Person’s failure Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance reasonably satisfactory to be duly qualified or licensed would not cause a Material Adverse EffectLender;
(t) Lender shall have received copies of each of the Indentures, each of Borrowerthe Assigned Contracts, Borrower’s Subsidiaries and Servicer the Tax Allocation Agreement, together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and complete copy thereof;
(u) Lender shall have reviewed each of the Indentures, each of the Assigned Contracts, and the Tax Allocation Agreement, the results of which shall be reasonably satisfactory to Lender;
(v) Borrower 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 Person Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated thereby or for the conduct of their respective businesses as contemplated by this Agreement hereby and Agent thereby;
(w) Lender shall have received evidenceBorrower's Closing Date Business Plan;
(x) MFBI and Fairfield Foods shall have been merged into Borrower, such mergers shall have been consummated and Lender shall have received evidence of such mergers all in form and substance reasonably satisfactory to Agent, that Servicer holds a currently effective California Lender’s Finance Licenses authorizing it to make and hold loans in California and to conduct its business;
(py) Agent Borrower shall have recorded evidence of the merger of MFBI into Borrower with the U.S. Patent and Trademark Office and Lender shall have received evidence, evidence of such recordation in form and substance reasonably satisfactory to Agent, of the establishment of the Collection Account and the Trust Account, and the perfection of the Trustee’s LiensLender;
(qz) Agent Lender shall have received duly executed releases from Bank of New York and NationsBank of Texas, N.A. with respect to the Liens on the Intellectual Property Rights listed on SCHEDULE 3.1(z) and evidence of the filing of such releases with the U.S. Patent and Trademark Office, all in form and substance reasonably satisfactory to Lender;
(aa) Lender shall have received duly executed releases or other evidence satisfactory to Lender from Wachovia Bank, National Association, Georgia Department of Labor and Georgia Department of Revenue with respect to the Liens on the real property owned by GACC and evidence of the filing of such releases, all in form and substance reasonably satisfactory to Lender;
(bb) Borrower shall have filed with the U.S. Patent and Trademark Office evidence of its ownership of the "Hot ▇▇▇" and "Original Cookie" trademarks and Lender shall have received evidence of such filing in form and substance reasonably satisfactory to Lender;
(cc) Lender shall have received evidence in form and substance reasonably satisfactory to Lender that not less than $2,500,000 of the sale proceeds from the sale of 36 American Food Limited Partnership, a Texas limited partnership (aka TCBY Americana), shall have been paid to Borrower and Borrower shall have deposited such proceeds in a Cash Management Account;
(dd) Lender shall have received an irrevocable initial request for an Advance or issuance of Letters of Credit in an aggregate amount equal amendment to or greater than $25,000,000;
(r) Agent shall have received evidence, the Corky's Security Agreement in form and substance reasonably satisfactory to Agent, that as of Lender and duly executed by all parties to the Closing Date, all Portfolio Loans and Purchased Participations are owned by Borrower free and clear of any liens or encumbrances other than Permitted Liens, Corky's Security Agreement including, without limitation, the Corky's Shareholders;
(iee) Lender shall have received a fully-duly executed payoff letter evidencing (A) the release by the DZ Trustee (as defined Cash Management Agreement from LaSalle Bank with respect to Account No. 5800290503 together with an opinion of counsel in the Intercreditor Agreement), on behalf of the DZ Secured Parties, of the DZ Trustee’s lien on, form and security interest in and to, all Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, and (B) the agreement by the DZ Trustee substance reasonably satisfactory to deliver possession of the Portfolio Loan Documents evidencing the Portfolio Loans and Purchased Participations owned by Borrower as of the Closing Date, to the Trustee, for the benefit of each member of the Lender Group, in each case, upon receipt by the DZ Trustee of the payoff amount specified therein, and (ii) that certain Assignment Agreement, dated as of the date hereof, by and between Servicer and the DZ Borrower, whereby the DZ Borrower assigned, conveyed, and transferred to Servicer, all of the DZ Borrower’s right, title, and interest in and to the Purchased Loans (as defined therein)Lender; and
(sff) all other documents and legal matters in connection with the transactions contemplated by this Agreement to be completed prior to the initial Advance hereunder shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent (the approval of Agent of such documents and legal matters under this Section 3.1(v) to be evidenced by the initial Advance or initial issuance of a Letter of Credit hereunder)Lender.
Appears in 1 contract
Sources: Loan and Security Agreement (MRS Fields Holding Co Inc)