Conditions Precedent to the Initial Extension of Credit. The ------------------------------------------------------- obligation of the Lender Group (or any member thereof) to make the initial Advance, the Term Loan A, the Term Loan B, or issue the initial Letters of Credit (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent and the Lenders, of each of conditions precedent set forth below: (a) the Closing Date shall occur on or before August 31, 1999; (b) Agent shall have received all financing statements required by Agent, duly executed by the Obligors, and Agent shall have received searches reflecting the filing of all such financing statements; (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) this Agreement; (ii) the Fee Letter; (iii) the Lockbox Agreements; (iv) the Disbursement Letter; (v) the Copyright Security Agreement; (vi) the Trademark Security Agreement; (vii) the Guaranty; (viii) the Security Agreement; (ix) the Suretyship Agreement; (x) the Pledge Agreement, together with all originals of certificates or other instruments (if any) evidencing the Stock pledged pursuant to the Pledge Agreement, as well as Stock powers with respect thereto endorsed in blank; (xi) the Intercompany Subordination Agreement; (xii) the Pay-Off Letters; together with (y) UCC termination statements and other documentation evidencing the termination by each Existing Lender of its Liens in and to the properties and assets of the Obligors, and (z) such other documentation evidencing the termination of Liens (including the UK Lien in respect of Lloyds Bank but excluding Permitted Liens) in and to the properties and assets of the Obligors outside the United States; (xiii) the Closing Date Assignments; (xiv) the Registration Rights Agreement; and (xv) the Control Agreement. (d) Agent shall have received a certificate from the Secretary of each Obligor attesting to the resolutions of such Obligor's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Obligor is a party and authorizing specific officers of such Obligor to execute the same; (e) Agent shall have received copies of each Obligor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of the applicable Obligor; (f) Agent shall have received a certificate of status with respect to each Obligor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Obligor, which certificate shall indicate that such Obligor is in good standing in such jurisdiction; (g) Agent shall have received certificates of status with respect to each Obligor, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Obligor is in good standing in such jurisdictions; (h) Agent shall have received such Collateral Access Agreements respecting those locations identified on Schedule 3.1(h); --------------- (i) Agent shall have received satisfactory evidence that not less than the Required Library of all existing copyrights of Borrower required to be registered under Section 6(a) of the Copyright Security Agreement have been registered with the United States Copyright Office (or are the subject of a diligently prosecuted application therefor), and that all such copyrights and any proceeds thereof are specifically encumbered by the Copyright Security Agreement which has been filed with the United States Copyright Office; (j) Agent shall have received a certificate of insurance, together with the endorsements thereto, in each case, as are required by Section 6.9, the form and substance of which shall be satisfactory to Agent and ----------- its counsel; (k) Agent shall have received evidence that the Stock Purchase Agreement has been amended, the form and substance of such amendment to be satisfactory to Agent and its counsel; (l) Agent shall have received opinions of the Specified Obligors' counsel in form and substance satisfactory to Agent in its Permitted Discretion; (m) Agent shall have received evidence that the Permitted Subordinated Debt has been subordinated, on terms and conditions satisfactory to Agent in its sole discretion, to the payment of the Obligations;
Appears in 1 contract
Sources: Loan and Security Agreement (System Software Associates Inc)
Conditions Precedent to the Initial Extension of Credit. The ------------------------------------------------------- obligation of the Lender Group (or any member thereof) to make the initial Advance, the Term Loan A, the Term Loan B, or issue the initial Letters of Credit Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent and the LendersAgent, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before August 31January 9, 19992003;
(b) Agent shall have received filed all financing statements required by Agent, duly executed by the Obligors, and Agent shall have received searches reflecting confirmation of the filing of all such financing statements;
(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) this Agreement;
(ii) the Fee Letter;
(iii) the Lockbox Agreements;
(iv) the Disbursement Letter;
(v) the Copyright Security Agreement;
(vi) the Trademark Security Agreement;
(vii) the Guaranty;
(viii) the Security Agreement;
(ix) the Suretyship Agreement;
(x) the Stock Pledge Agreement, together with all originals certificates representing the shares of certificates or other instruments (if any) evidencing the Stock pledged pursuant to the Pledge Agreementthereunder, as well as Stock powers with respect thereto endorsed in blank;,
(xiii) the Intercompany Subordination Trademark Security Agreement;,
(xiiiii) the Cash Management Agreements including (i) a restricted account agreement with ▇▇▇▇▇ Fargo and (ii) blocked account agreements with each of (A) Bank of America and (B) First Union Bank,
(iv) the Credit Card Agreements with the following Credit Card Processors (A) American Express Travel Related Services Company, Inc., (B) Discover Financial Services, Inc. and (C) Chase Manhattan Services LLC and Chase Manhattan Bank,
(v) the Copyright Security Agreement,
(vi) the Guaranty Agreement,
(vii) the Fee Letter,
(viii) the Pay-Off Letters; Letter, together with (y) UCC termination statements and other documentation evidencing the termination by each Existing Lender of its Liens in and to the properties and assets of Borrower,
(ix) the Obligors, and Disbursement Letter,
(zx) such other documentation evidencing the termination of Liens (including the UK Lien in respect of Lloyds Bank but excluding Permitted Liens) in and to the properties and assets Perfection Certificate of the Obligors outside Borrower,
(xi) the United StatesDue Diligence Letter, and
(xii) Solvency Certificate from the Borrower;
(xiiid) the Closing Date AssignmentsCollateral Access Agreements with respect to chief executive offices;
(xive) the Registration Rights Agreement; andAgent shall have received Bailee Acknowledgments with respect to each location listed on Schedule 3.1(e);
(xvf) Agent shall have received a pro forma Compliance Certificate dated as of the Control Agreement.Closing Date;
(dg) Agent shall have received a certificate from the Secretary of each Obligor the Borrower attesting to the resolutions of such Obligorthe Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Obligor the Borrower is a party and authorizing specific officers of such Obligor Borrower to execute the same;
(eh) Agent shall have received copies of each Obligorthe Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of the applicable ObligorBorrower;
(fi) Agent shall have received a certificate of status with respect to each Obligorthe Borrower, dated within 10 30 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of the Borrower, which certificate shall indicate that the Borrower is in good standing in such jurisdiction;
(j) Agent shall have received certificates of status with respect to the Borrower, each dated within 45 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of the Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that the Borrower is in good standing in such jurisdictions;
(k) Agent shall have received a certificate from the Secretary of the Guarantor attesting to the resolutions of the Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which the Guarantor is a party and authorizing specific officers of the Guarantor to execute the same;
(l) Agent shall have received copies of the Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;
(m) Agent shall have received a certificate of status with respect to the Guarantor, dated within 30 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such ObligorGuarantor, which certificate shall indicate that such Obligor Guarantor is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Obligor, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Obligor is in good standing in such jurisdictions;
(h) Agent shall have received such Collateral Access Agreements respecting those locations identified on Schedule 3.1(h); ---------------
(i) Agent shall have received satisfactory evidence that not less than the Required Library of all existing copyrights of Borrower required to be registered under Section 6(a) of the Copyright Security Agreement have been registered with the United States Copyright Office (or are the subject of a diligently prosecuted application therefor), and that all such copyrights and any proceeds thereof are specifically encumbered by the Copyright Security Agreement which has been filed with the United States Copyright Office;
(jn) Agent shall have received a certificate of insurance, together with the endorsements thereto, in each case, as are required by Section 6.96.8, the form and substance of which shall be satisfactory to Agent and ----------- its counselAgent;
(k) Agent shall have received evidence that the Stock Purchase Agreement has been amended, the form and substance of such amendment to be satisfactory to Agent and its counsel;
(lo) Agent shall have received opinions of the Specified Obligors' Borrower's counsel in form and substance satisfactory to Agent in its Permitted DiscretionAgent;
(mp) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of the Borrower) that all income and any other material tax returns required to be filed by the Borrower have been timely filed and all income and any material taxes upon the Borrower or its properties, assets, income, and franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Subordinated Debt has been subordinatedProtest;
(q) Borrower shall have Excess Availability of not less than $20,000,000;
(r) Agent shall have completed its business, on terms legal, and conditions collateral due diligence, including a collateral audit and review of Borrower's books and records and verification of Borrower's representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent;
(s) Agent shall have received completed reference checks with respect to Borrower's senior management, the results of which are satisfactory to Agent in its sole discretion;
(t) Agent shall have received an appraisal of the Net Retail Liquidation Value applicable to Borrower's Inventory, the results of which shall be satisfactory to Agent;
(u) Agent shall have received the Closing Date Business Plan;
(v) Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(w) Agent shall have received copies of the following documents from each of (i) Enhanced Retail Funding LLC, (ii) PNC Bank, National Bank and (iii) Tennebaum & Co., LLC: (A) executed payoff letters in form satisfactory to the payment Agent relating to all amounts owed by Borrower to such creditors for borrowed money, (B) date-stamped copies of "in lieu" financing statements filed in the Secretary of State's office for the State of Delaware referencing each financing statement on file against the Borrower in any jurisdiction by such creditors and (C) date-stamped copies of termination statements filed by such creditors with the Secretary of State of Delaware terminating the "in lieu" filings listed in the foregoing clause (B);
(x) Agent shall have received evidence satisfactory in Agent's Permitted Discretion that Borrower has received all material consents, licenses, approvals or evidence of other actions required by any Person, including any Governmental Authority, in connection with the execution and delivery by Borrower of this Agreement or any other Loan Document or with the consummation of the Obligationstransactions contemplated hereby and thereby;
(y) Agent shall have received complete copies of the real estate leases relating to (i) the Borrower's chief executive office, (ii) any location where the Borrower maintains records and (iii) any distribution or warehouse where the Borrower maintains Inventory;
(z) Agent shall have received written evidence satisfactory to it that the following liens have been terminated or satisfactorily resolved: (i) blanket lien filed by ▇▇▇▇▇▇▇
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The ------------------------------------------------------- obligation of the Lender Group (or any member thereof) to make the initial Advance, the Term Loan A, the Term Loan B, or issue the initial Letters of Credit Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent and the LendersAgent, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before August 3119, 19992002;
(b) Agent shall have received (i) a letter authorizing Agent to pre-file the financing statements required hereunder and under the Purchase Agreement, duly executed by Borrower, Servicer and each Originator, (ii) all financing statements required by Agent, duly executed naming Borrower as debtor and Agent as secured party, (iii) all financing statements required by the ObligorsAgent, naming each Originator as debtor, Borrower as secured party and Agent as assignee, and (iii) evidence satisfactory to Agent shall have received searches reflecting of the filing of all such financing statements;
(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) this Agreement;the Control Agreements,
(ii) the Fee Disbursement Letter;,
(iii) the Lockbox Agreements;Fee Letter,
(iv) the Disbursement Letter;Guaranty,
(v) the Copyright Security Agreement;Cash Management Agreements,
(vi) the Trademark Security Agreement;Officers' Certificate,
(vii) the Guaranty;Purchase Agreement, and
(viii) the Security Servicing Agreement;
(ix) the Suretyship Agreement;
(x) the Pledge Agreement, together with all originals of certificates or other instruments (if any) evidencing the Stock pledged pursuant to the Pledge Agreement, as well as Stock powers with respect thereto endorsed in blank;
(xi) the Intercompany Subordination Agreement;
(xii) the Pay-Off Letters; together with (y) UCC termination statements and other documentation evidencing the termination by each Existing Lender of its Liens in and to the properties and assets of the Obligors, and (z) such other documentation evidencing the termination of Liens (including the UK Lien in respect of Lloyds Bank but excluding Permitted Liens) in and to the properties and assets of the Obligors outside the United States;
(xiii) the Closing Date Assignments;
(xiv) the Registration Rights Agreement; and
(xv) the Control Agreement.
(d) Agent shall have received a certificate from the Secretary of Borrower, Servicer and each Obligor Originator (i) attesting to the resolutions of such ObligorPerson's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Transaction Documents to which such Obligor Person is a party and authorizing specific officers of such Obligor Person to execute the same, and (ii) certifying the names and true signatures of the officers of such Person authorized to sign each Transaction Document to which such Person is a party;
(e) Agent shall have received copies of Borrower's, Servicer's and each ObligorOriginator's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of the applicable Obligorsuch Person;
(f) Agent shall have received a certificate of status with respect to Borrower, Servicer and each ObligorOriginator, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such ObligorPerson, which certificate shall indicate that such Obligor Person is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to Borrower, Servicer and each ObligorOriginator, each dated within 15 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions jurisdiction in which each such Person maintains its chief executive office (but only to the extent that such Person's failure to be duly qualified or licensed in such jurisdiction would constitute a Material Adverse Change), which certificates shall indicate that such Obligor Person is in good standing in such jurisdictions;
(h) Agent shall have received such Collateral Access Agreements respecting those locations identified on Schedule 3.1(h); ---------------a certificate from the Secretary of 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 Guarantor authorized to sign each Loan Document to which Guarantor is a party;
(i) Agent shall have received satisfactory evidence that not less than copies of Guarantor's Governing Documents, as amended, modified, or supplemented to the Required Library of all existing copyrights of Borrower required to be registered under Section 6(a) of the Copyright Security Agreement have been registered with the United States Copyright Office (or are the subject of a diligently prosecuted application therefor)Closing Date, and that all such copyrights and any proceeds thereof are specifically encumbered certified by the Copyright Security Agreement which has been filed with the United States Copyright OfficeSecretary of Guarantor;
(j) Agent shall have received a certificate of insurancestatus with respect to Guarantor, together with dated within 10 days of the endorsements theretoClosing 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 each case, as are required by Section 6.9, the form and substance of which shall be satisfactory to Agent and ----------- its counselgood standing in such jurisdiction;
(k) Agent shall have received evidence that certificates of status with respect to Guarantor, each dated within 30 days of the Stock Purchase Agreement has been amendedClosing Date, the form and substance of such amendment certificates to be satisfactory issued by the appropriate officer of the jurisdiction in which each Guarantor maintains its chief executive office (but only to Agent and its counselthe extent that Guarantor's failure to be duly qualified or licensed in such jurisdiction would constitute a Material Adverse Change), which certificates shall indicate that Guarantor is in good standing in such jurisdictions;
(l) [INTENTIONALLY OMITTED]
(m) [INTENTIONALLY OMITTED]
(n) Agent shall have received opinions an opinion of the Specified Obligors' Borrower's counsel in form and substance satisfactory to Agent in its Permitted Discretionthe Lenders, such opinion to include, without limitation, an opinion that the Transactions will be deemed a "true sale" under the Bankruptcy Code and other applicable law;
(mo) Agent shall be satisfied with the Companies' cash management systems, including as to the absence of commingling of funds among Borrower and the other Companies;
(p) the Lenders shall have completed their business, legal, and collateral due diligence, including a takeover audit, a roll-forward of accounts receivable, the senior-sponsor visit and review of Borrower's, Servicer's and each Originator's books and records and verification of Borrower's, Servicer's and each Originator's representations and warranties to the Lender Group, the results of which shall in each case be satisfactory to the Lenders;
(q) Agent shall have received evidence that completed reference checks with respect to Borrower's senior management, the Permitted Subordinated Debt has been subordinated, on terms and conditions results of which are satisfactory to Agent in its sole discretion;
(r) the Lenders shall have received the Closing Date Business Plan;
(s) Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by the Transaction Documents, PROVIDED that Borrower has received invoices, each in reasonable detail, with respect thereto;
(t) Agent shall have received copies of each Material Contract, together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and complete copy thereof;
(u) 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 Borrower of this Agreement or any other Transaction Document or with the consummation of the transactions contemplated hereby and thereby;
(v) any consent, waiver or other approval required to be obtained from any Person under any of the Debt Documents in order to permit the execution, delivery and performance of the Transaction Documents and the consummation of the Transactions shall have been duly executed and delivered by such Person, shall be in form and substance satisfactory to Agent, and a copy of the same shall have been delivered to Agent, together with a certificate of the Secretary of Borrower certifying each such consent, waiver or other approval as being a true, correct and complete copy thereof;
(w) the parties to the Existing Credit Agreement shall have entered into the Existing Credit Agreement, the terms of which shall be satisfactory to Agent, and a copy of the same shall have been delivered to Agent, together with a certificate of the Secretary of Borrower certifying such agreement as being a true, correct and complete copy thereof;
(x) Agent and its counsel shall be satisfied that upon the execution and delivery of the documents referred to in clauses (v) and (w) above, no other waivers, consents or other approvals shall be required under any Material Contract in order to permit the execution, delivery and performance of the Transaction Documents and the consummation of the Transactions;
(y) Borrower, Servicer and the Originators shall have duly executed and delivered the Purchase Agreement and the following transactions shall have been consummated pursuant to the terms of the Purchase Agreement (the "Initial Transactions"): (i) the Originators shall have contributed to Borrower Subject Accounts in an aggregate amount of not less than $190,094,197.30; (ii) Borrower shall have issued to the Originators shares of its capital Stock in exchange therefore; (iii) concurrently with the making of the initial Advance hereunder, Borrower shall have purchased additional Subject Accounts from the Originators in an aggregate principal amount of not less than $25,880,874.61, shall have paid to the Originators cash consideration of at least $21,998,743.42 and shall have delivered to the Originators the Subordinated Note; and (iv) after giving effect to the preceding clauses (i) and (iii), Borrower shall have acquired good and marketable title to all Subject Accounts then in existence, free and clear of any Lien other than Permitted Liens;
(z) Borrower shall have Availability in an amount of not less than $5,000,000 after giving effect to the initial Advances hereunder and the payment of all fees and expenses required to be paid by Borrower on the ObligationsClosing Date under this Agreement and the other Loan Documents;
(aa) Borrower shall have implemented a system of electronic collateral reporting, satisfactory to Agent in all respects, in order to provide electronic reporting of the Borrowing Base in accordance with SECTION 6.2(F);
(bb) the Lenders shall have received and be satisfied with the preliminary financial statements of Parent and its Subsidiaries for the fiscal quarter ending June 30, 2002; and
(cc) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The ------------------------------------------------------- obligation of the Lender Group (or any member thereof) to make the initial Advance, the Term Loan A, the Term Loan B, or issue the initial Letters of Credit Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent and the LendersAgent, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before August 31March 4, 19992002;
(b) Agent shall have received all financing statements required by Agent, duly executed authorized by the ObligorsBorrower or, as applicable, a Guarantor, and Agent shall have received searches confirmations reflecting the filing of all such financing statements;
(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) this Agreementthe Cash Management Agreements, including, without limitation, with respect to (A) lockbox account No. 0030134412 at Bank of America, N.A., (B) lockbox account ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇.▇., (▇) Deposit Account No. 4113052459 at Bank of America, N.A., (D) lockbox account No. 0015891942 at Allfirst Bank, and (E) lockbox account Nos. 4950050062, 4950050070, 4950050054 at ▇▇▇▇▇ Fargo;
(ii) to the Fee Letterextent required pursuant to Section 7.13, the Control Agreements;
(iii) the Lockbox AgreementsIntellectual Property Security Agreement;
(iv) the Disbursement Letter;
(v) the Copyright Security AgreementDue Diligence Letter;
(vi) the Trademark Security AgreementFee Letter;
(vii) the Guaranty;
(viii) the Guarantor Security Agreement;
(ix) the Suretyship AgreementMortgages;
(x) the Officers' Certificate;
(xi) the Stock Pledge Agreement, together with all originals certificates representing the shares of certificates or other instruments (if any) evidencing the Stock pledged pursuant to the Pledge Agreementthereunder, as well as Stock powers with respect thereto endorsed in blank;
(xi) the Intercompany Subordination Agreement;
(xii) the Pay-Off Letters; together with (y) UCC termination statements and other documentation evidencing the termination by each Existing Lender of its Liens in and to the properties and assets a Borrowing Base Certificate dated as of the Obligors, and (z) such other documentation evidencing the termination of Liens (including the UK Lien in respect of Lloyds Bank but excluding Permitted Liens) in and to the properties and assets of the Obligors outside the United States;Closing Date; and
(xiii) a Compliance Certificate dated as of the Closing Date AssignmentsDate;
(xiv) the Registration Rights Agreement; and
(xv) the Control Agreement.
(d) Agent shall have received a certificate from the Secretary secretary or assistant secretary of each Obligor Borrower (i) attesting to the resolutions of such ObligorBorrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Obligor Borrower is a party and authorizing specific officers of such Obligor Borrower to execute the same, and (ii) certifying the names and true signatures of the officers of Borrower authorized to sign each Loan Document;
(e) Agent shall have received copies of each ObligorBorrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary secretary or assistant secretary of the applicable ObligorBorrower;
(f) Agent shall have received a certificate of status with respect to each ObligorBorrower, 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 Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to Borrower, each dated within thirty (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 Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate from the secretary or assistant secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors
(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 or assistant secretary of such Guarantor; (j) Agent shall have received a certificate of status with respect to each of its Subsidiaries extant as of the Closing Date, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such ObligorSubsidiary, which certificate shall indicate that such Obligor Subsidiary is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Obligor, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Obligor is in good standing in such jurisdictions;
(h) Agent shall have received such Collateral Access Agreements respecting those locations identified on Schedule 3.1(h); ---------------
(i) Agent shall have received satisfactory evidence that not less than the Required Library of all existing copyrights of Borrower required to be registered under Section 6(a) of the Copyright Security Agreement have been registered with the United States Copyright Office (or are the subject of a diligently prosecuted application therefor), and that all such copyrights and any proceeds thereof are specifically encumbered by the Copyright Security Agreement which has been filed with the United States Copyright Office;
(j) Agent shall have received a certificate of insurance, together with the endorsements thereto, in each case, as are required by Section 6.9, the form and substance of which shall be satisfactory to Agent and ----------- its counsel;
(k) Agent shall have received evidence that the Stock Purchase Agreement has been amended, the form and substance of such amendment to be satisfactory to Agent and its counsel;
(l) Agent shall have received opinions of the Specified Obligors' counsel in form and substance satisfactory to Agent in its Permitted Discretion;
(m) Agent shall have received evidence that the Permitted Subordinated Debt has been subordinated, on terms and conditions satisfactory to Agent in its sole discretion, to the payment of the Obligations;
Appears in 1 contract
Sources: Loan and Security Agreement (Orbital Sciences Corp /De/)
Conditions Precedent to the Initial Extension of Credit. The ------------------------------------------------------- obligation of the Lender Group (or any member thereof) to make the initial Advance, the Term Loan A, the Term Loan B, or issue the initial Letters of Credit Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent and the LendersAgent, of each of conditions precedent set forth below:
(a) the Closing Date shall occur on or before August 31December 15, 1999;
(b) Agent shall have received all financing statements required by Agent, duly executed by the Obligors, and Agent shall have received searches endorsed filed copies from the appropriate governmental agencies reflecting the filing of all such financing statements;
(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) this Agreement;
(ii) tri-party blocked account agreements governing the Fee LetterConcentration Accounts and the Designated Account;
(iii) the Lockbox AgreementsControl Agreement(s), if any;
(iv) the Disbursement Letter;
(v) the Copyright Security Stock Pledge Agreement, together with all certificates (if any) representing shares of Stock of each of the Subsidiaries of Guitar and MFI and Stock of any other Person pledged thereunder, as well as Stock powers with respect to the foregoing endorsed in blank;
(vi) the Trademark Security Agreement;
(vii) the Guaranty;
(viii) the Guarantor Security Agreement;
(ix) the Suretyship Agreement;
(x) the Pledge Agreement, together with all originals of certificates or other instruments (if any) evidencing the Stock pledged pursuant to the Pledge Agreement, as well as Stock powers with respect thereto endorsed in blankMortgages;
(xi) the Intercompany Subordination Inventory Security Agreement;
(xii) the Fee Letter;
(xiii) the Fee Split Letter;
(xiv) the Permitted Holders Side Letter;
(xv) the Pay-Off Letters; Letter, together with (y) UCC termination statements and other documentation evidencing the termination by each Existing Lender of its Liens in and to the properties and assets of the Obligors, and (z) such other documentation evidencing the termination of Liens (including the UK Lien in respect of Lloyds Bank but excluding Permitted Liens) in and to the properties and assets of the Obligors outside the United StatesBorrowers;
(xiii) the Closing Date Assignments;
(xiv) the Registration Rights Agreement; and
(xv) the Control Agreement.
(d) Agent shall have received a certificate from the Secretary of each Obligor Guitar attesting to the resolutions of such Obligoreach Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Obligor a Borrower is a party and authorizing specific officers of such Obligor Borrower to execute the same;
(e) Agent shall have received copies of each ObligorBorrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of the applicable ObligorGuitar;
(f) Agent shall have received a certificate of status with respect to each ObligorBorrower, dated within 10 14 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such ObligorBorrower, which certificate shall indicate that such Obligor Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each ObligorBorrower, each dated within 15 21 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Obligor Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate from the Secretary of Guitar attesting to the resolutions of each Guarantor's Board of Directors authorizing such Collateral Access Agreements respecting those locations identified on Schedule 3.1(h); ---------------Guarantor's 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 satisfactory evidence that not less than copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Required Library of all existing copyrights of Borrower required to be registered under Section 6(a) of the Copyright Security Agreement have been registered with the United States Copyright Office (or are the subject of a diligently prosecuted application therefor)Closing Date, and that all such copyrights and any proceeds thereof are specifically encumbered certified by the Copyright Security Agreement which has been filed with the United States Copyright OfficeSecretary of Guitar;
(j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 14 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;
(k) Agent shall have received certificates of status with respect to Guarantor, each dated within 21 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions 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, in each case, as are required by Section SECTION 6.9, the form and substance of which shall be satisfactory to Agent and ----------- its counsel;
(km) Agent shall have received evidence that such Collateral Access Agreements from lessors, warehousemen, bailees, and other third persons as Agent may require in the Stock Purchase Agreement has been amended, the form and substance exercise of such amendment to be satisfactory to Agent and its counselPermitted Discretion;
(ln) Agent shall have received opinions an opinion of the Specified Obligors' counsel in form and substance satisfactory to Agent in its Permitted Discretion;
(mo) Agent shall have received satisfactory evidence that all tax returns required to be filed by Obligors have been timely filed and all taxes upon Obligors or their properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Subordinated Debt has been subordinatedProtest;
(p) Borrowers shall have Excess Availability after giving effect to the initial extensions of credit, on terms of at least $15,000,000;
(q) Agent shall have completed its business, legal, and conditions collateral due diligence;
(r) Agent shall have completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion;
(s) Agent shall have received a liquidation value appraisal of Guitar's Inventory, the results of which are satisfactory to Agent in its sole discretion;
(t) Agent shall have received copies of all employment or similar agreements between Guitar or any Subsidiary thereof and any Permitted Holder or Affiliate thereof, certified as current, complete and correct by an Authorized Person;
(u) Agent shall have received a copy of Borrowers' Cycle Count Manual, certified as current, complete and correct by an Authorized Person;
(v) Borrowers shall pay all Lender Group Expenses incurred by Agent or any other Lender in connection with the payment entry of Agent and the Obligations;Lenders into this Agreement; and
(w) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent and its counsel.
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The ------------------------------------------------------- obligation of the Lender Group (or any member thereof) to make the initial Advance, the Term Loan A, the Term Loan B, or issue the initial Letters of Credit Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent and the LendersAgent, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before August 31March 4, 19992002;
(b) Agent shall have received all financing statements required by Agent, duly executed authorized by the ObligorsBorrower or, as applicable, a Guarantor, and Agent shall have received searches confirmations reflecting the filing of all such financing statements;
(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) this Agreementthe Cash Management Agreements, including, without limitation, with respect to (A) lockbox account No. 0030134412 at Bank of America, N.A., (B) lockbox account N▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇.▇., (▇) Deposit Account No. 4113052459 at Bank of America, N.A., (D) lockbox account No. 0015891942 at Allfirst Bank, and (E) lockbox account Nos. 4950050062, 4950050070, 4950050054 at W▇▇▇▇ Fargo;
(ii) to the Fee Letterextent required pursuant to Section 7.13, the Control Agreements;
(iii) the Lockbox AgreementsIntellectual Property Security Agreement;
(iv) the Disbursement Letter;
(v) the Copyright Security AgreementDue Diligence Letter;
(vi) the Trademark Security AgreementFee Letter;
(vii) the Guaranty;
(viii) the Guarantor Security Agreement;
(ix) the Suretyship AgreementMortgages;
(x) the Officers’ Certificate;
(xi) the Stock Pledge Agreement, together with all originals certificates representing the shares of certificates or other instruments (if any) evidencing the Stock pledged pursuant to the Pledge Agreementthereunder, as well as Stock powers with respect thereto endorsed in blank;
(xi) the Intercompany Subordination Agreement;
(xii) the Pay-Off Letters; together with (y) UCC termination statements and other documentation evidencing the termination by each Existing Lender of its Liens in and to the properties and assets a Borrowing Base Certificate dated as of the Obligors, and (z) such other documentation evidencing the termination of Liens (including the UK Lien in respect of Lloyds Bank but excluding Permitted Liens) in and to the properties and assets of the Obligors outside the United States;Closing Date; and
(xiii) a Compliance Certificate dated as of the Closing Date AssignmentsDate;
(xiv) the Registration Rights Agreement; and
(xv) the Control Agreement.
(d) Agent shall have received a certificate from the Secretary secretary or assistant secretary of each Obligor Borrower (i) attesting to the resolutions of such Obligor's Borrower’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Obligor Borrower is a party and authorizing specific officers of such Obligor Borrower to execute the same, and (ii) certifying the names and true signatures of the officers of Borrower authorized to sign each Loan Document;
(e) Agent shall have received copies of each Obligor's Borrower’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary secretary or assistant secretary of the applicable ObligorBorrower;
(f) Agent shall have received a certificate of status with respect to each ObligorBorrower, 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 Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to Borrower, each dated within thirty (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 Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate from the secretary or assistant 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 Closing Date, certified by the secretary or assistant secretary of such Guarantor;
(j) Agent shall have received a certificate of status with respect to each of its Subsidiaries extant as of the Closing Date, dated within ten (10) days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such ObligorSubsidiary, which certificate shall indicate that such Obligor Subsidiary is in good standing in such jurisdiction;
(gk) Agent shall have received certificates of status with respect to each ObligorSubsidiary extant as of the Closing Date, each dated within 15 thirty (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 Subsidiary) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Obligor Subsidiary is in good standing in such jurisdictions;
(h) Agent shall have received such Collateral Access Agreements respecting those locations identified on Schedule 3.1(h); ---------------
(i) Agent shall have received satisfactory evidence that not less than the Required Library of all existing copyrights of Borrower required to be registered under Section 6(a) of the Copyright Security Agreement have been registered with the United States Copyright Office (or are the subject of a diligently prosecuted application therefor), and that all such copyrights and any proceeds thereof are specifically encumbered by the Copyright Security Agreement which has been filed with the United States Copyright Office;
(jl) Agent shall have received a certificate of insurance, together with the endorsements thereto, in each case, as are required by Section 6.96.8, the form and substance of which shall be satisfactory to Agent and ----------- its counsel;
(k) Agent shall have received evidence that the Stock Purchase Agreement has been amended, the form and substance of such amendment to be satisfactory to Agent and its counsel;
(l) Agent shall have received opinions of the Specified Obligors' counsel in form and substance satisfactory to Agent in its Permitted DiscretionAgent;
(m) Agent shall have received evidence an opinion of Borrower’s counsel in form and substance satisfactory to the Lenders, including, without limitation, Borrower’s Virginia counsel;
(n) Agent shall have a certificate of the chief financial officer of Borrower certifying that all tax returns required to be filed by Borrower have been timely filed and all taxes upon Borrower or its properties, assets, income, and franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Subordinated Debt has been subordinatedProtest;
(o) Borrower shall have the Required Availability after giving effect to the initial extensions of credit hereunder;
(p) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrower’s books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be satisfactory to the Lenders in their Permitted Discretion, and (ii) a lien search on terms Borrower and conditions its Subsidiaries, the results of which are satisfactory to Agent;
(q) Agent shall have received the unaudited financial statements for Borrower as of December 31, 2001, which shall be in form and substance satisfactory to the Lenders;
(r) The Lenders shall have completed their review of the final enterprise valuation of Borrower calculated by A▇▇▇▇▇▇▇, the results of which shall be satisfactory to Lenders;
(s) The Lenders shall have received Borrower’s Closing Date Business Plan;
(t) Borrower shall pay, or shall have provided irrevocable directions to pay from the loan proceeds, all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement;
(u) Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to the Lenders, and (ii) mortgagee title insurance policies pursuant to ALTA Lender’s Policies of Title Insurance (or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Agent, together with any endorsements thereto, (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 satisfactory to Agent;
(v) Agent shall have received (i) a copy of the Phase-I environmental report and a reliance letter issued to Agent for the benefit of the Lender Group for the unimproved Real Property Collateral located at Steeplechase Industrial Park, Lots 1-4, and (ii) an ALTA/ACSM survey certified to Agent for the benefit of the Lender Group with respect to each parcel composing the Real Property Collateral; the environmental consultants and surveyors retained for such ALTA/ACSM survey, the scope of the reports or surveys, and the results of both the survey and the Phase-I report shall be reasonably acceptable to Agent;
(w) Agent shall have received copies of each of (i) the Indenture, (ii) the pay-off letter executed by JPMorgan, together with Uniform Commercial Code termination statements and other documentation evidencing the termination by JPMorgan of its sole discretion, Liens on and to the payment properties and assets of Borrower and its Subsidiaries, (iii) the pay-off letter executed by MetLife, together with Uniform Commercial Code termination statements and other documentation evidencing the termination by MetLife of its Liens on and to the properties and assets of Borrower and its Subsidiaries, except as in respect of any operating lease between Borrower and MetLife or one of its Affiliates, and (iv) termination statements for all other financing statements that have not otherwise lapsed, naming Borrower or its Subsidiaries as “debtor”, excluding the Permitted Liens;
(x) 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 Borrower of this Agreement or any other Loan Document or with the consummation of the Obligationstransactions contemplated hereby and thereby;
(y) Agent shall have received evidence satisfactory to it that Borrower has dissolved each of its Subsidiaries other than Orbital Communications, Orbital Holdings, and Orbital International;
(z) Borrower shall have executed a final settlement agreement with Indostar, the terms of which are substantially similar to the terms previously provided to Agent;
(aa) Agent shall have received evidence satisfactory to it that Borrower has prepared notices of assignment to be delivered to the relevant government contracting officers (or other authorized parties) pursuant to the Assignment of Claims Act and the applicable provisions of the F.A.R. with respect to all Accounts existing as of the date hereof with a remaining billable contract value equal to or greater than $2,000,000 after the Closing Date for which the United States or any department, agency or instrumentality thereof is the Account Debtor;
(bb) Borrower shall have established a cash management system satisfying the requirements of Section 2.7 and Section 7.13; provided, however, that the Cash Management Accounts with Bank of America, N.A. referenced in Section 3.2(g) shall not be required to be in Agent’s name; and
(cc) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent.
Appears in 1 contract
Sources: Loan and Security Agreement (Orbital Sciences Corp /De/)
Conditions Precedent to the Initial Extension of Credit. The ------------------------------------------------------- obligation of the Lender Group (or any member thereof) to make the initial Advance, the Term Loan A, the Term Loan B, or issue the initial Letters of Credit Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent and the LendersAgent, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before August 31September 16, 19992003;
(b) Agent shall have received filed all financing statements required by Agent, duly executed by the Obligorsapplicable Borrowers, and Agent shall have received searches reflecting confirmation (satisfactory to Agent in its Permitted Discretion) of the filing of all such financing statements;
(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) this the Canadian Security Agreement;,
(ii) the Fee Letter;
Stock Pledge Agreements (iii) other than the Lockbox Agreements;
(iv) the Disbursement Letter;
(v) the Copyright Security Agreement;
(vi) the Trademark Security Agreement;
(vii) the Guaranty;
(viii) the Security Agreement;
(ix) the Suretyship Agreement;
(x) the Hungarian Stock Pledge Agreement), together with all originals certificates representing the shares of certificates or other instruments (if any) evidencing the Stock pledged pursuant to the Pledge Agreementthereunder, as well as Stock powers with respect thereto endorsed in blank;,
(xiiii) the Copyright Security Agreements,
(iv) the Patent Security Agreement,
(v) the Trademark Security Agreements,
(vi) the Control Agreements substantially in the form of Exhibits 3.1(c)(vi)(1), (2), (3), (4), (5), (6) and (7), respectively, with respect to accounts maintained with the following banks: (1) M and T; (2) SunTrust Bank; (3) CIBC; (4) BofA (other than with respect to the Designated Account); (5) Designated Account Bank; (6) Banc of America Securities LLC; and (7) Bank of America, N.A. (Pledging Unit),
(vii) the Intercompany Subordination AgreementAgreement to be signed by all Loan Parties,
(viii) the Fee Letter,
(ix) the Disbursement Letter, and
(x) the Perfection Certificate of each Loan Party other than the UK Guarantors and Geac Hungary;
(xiid) Agent shall have received Collateral Access Agreements substantially in the Pay-Off Letters; together with forms of Exhibits 3.1(d)(1), (y2), (3) UCC termination statements and other documentation evidencing the termination by each Existing Lender of its Liens in and to the properties and assets of the Obligors, and (z4), respectively, with respect to (i) such other documentation evidencing the termination of Liens ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, (including the UK Lien in respect of Lloyds Bank but excluding Permitted Liens▇▇) in ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇, (▇▇▇) ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, Vienna, Virginia and to the properties and assets of the Obligors outside the United States(iv) ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
(xiiie) Agent shall have received a Closing Date Compliance Certificate dated as of the Closing Date AssignmentsDate;
(xiv) the Registration Rights Agreement; and
(xv) the Control Agreement.
(df) Agent shall have received a certificate from the Secretary of each Obligor Borrower attesting to the resolutions of such ObligorBorrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Obligor Borrower is a party and authorizing specific officers of such Obligor Borrower or GCCL to execute the same;
(eg) Agent shall have received copies of each ObligorBorrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of the applicable Obligorsuch Borrower;
(fh) Agent shall have received a certificate of status with respect to each ObligorBorrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such ObligorBorrower, which certificate shall indicate that such Obligor Borrower is in good standing as a corporation or other applicable organization in such jurisdiction (or the equivalent thereof under applicable law, if issued in such jurisdiction);
(gi) Agent shall have received certificates of status with respect to each ObligorBorrower, each dated within 15 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdiction of each such Borrower's chief executive office or principal place of business (if different than the jurisdiction of organization of such Borrower), which certificates shall indicate that such Borrower is in good standing as a corporation or other applicable organization in such jurisdictions;
(j) Agent shall have received a certificate from the Secretary of each Guarantor or other Loan Party attesting to the resolutions of such Guarantor's or other Loan Party's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor or other Loan Party is a party and authorizing officers of such Guarantor or other Loan Party to execute the same;
(k) Agent shall have received copies of each Guarantor's and other Loan Party's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor or other Loan Party;
(l) 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 attest to such Guarantor's corporate or other applicable organizational existence and to the extent such jurisdiction certifies as to good standing, such Guarantor's good standing as a corporation or other applicable organization in such jurisdiction;
(m) Agent shall have received certificates of status with respect to each Canadian Guarantor and Other 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 attest, in the case of each Canadian Guarantor and NSULC, to such Obligor is Person's registration as a corporation or other applicable organization in such jurisdiction, and, in the case of US LLC, its good standing as a limited liability company in such jurisdictionsjurisdiction;
(hn) Agent shall have received such Collateral Access Agreements respecting those locations identified on Schedule 3.1(h); ---------------
(ithe certificate(s) Agent shall have received satisfactory evidence that not less than the Required Library of all existing copyrights of Borrower required to be registered under Section 6(a) of the Copyright Security Agreement have been registered with the United States Copyright Office (or are the subject of a diligently prosecuted application therefor), and that all such copyrights and any proceeds thereof are specifically encumbered by the Copyright Security Agreement which has been filed with the United States Copyright Office;
(j) Agent shall have received a certificate of insurance, together with a form of lender's loss payee endorsement (and the endorsements thereto, in each caseaccompanying correspondence thereto previously provided to Agent) with respect to property coverage, as are required by Section 6.9, the form and substance of which shall be satisfactory to Agent and ----------- its counsel6.8;
(k) Agent shall have received evidence that the Stock Purchase Agreement has been amended, the form and substance of such amendment to be satisfactory to Agent and its counsel;
(lo) Agent shall have received opinions of the Specified ObligorsLoan Parties' US (including appropriate local counsel opinions from the states of Georgia, Missouri and Colorado), Canadian (other than Nova Scotia), Nova Scotia and Hungarian counsel, and Agent's UK counsel, in form and substance satisfactory to Agent in its Permitted Discretionthe forms of Exhibits 3.1(o)(1), (2), (3), (4), (5), (6), (7), (8), respectively;
(mp) Agent shall have received evidence that the Permitted Subordinated Debt has been subordinatedHungarian Stock Pledge Agreement duly executed by each of Geac Hungary, on terms 2019856 and conditions GCL;
(q) Borrowers shall have Liquidity of not less than $10,000,000 after giving effect to the initial extensions of credit hereunder, of which not more than $5,000,000 may be in the form of Qualified Cash Equivalents;
(r) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of Loan Parties' books and records and verification of Loan Parties' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent;
(s) Agent shall have received completed reference checks with respect to Loan Parties' senior management, the results of which are satisfactory to Agent in its sole discretion;
(t) Agent shall have received an appraisal of certain Borrowers' Eligible Recurring Maintenance Revenue, the results of which shall be satisfactory to Agent, in its sole discretion;
(u) Agent shall have received the initial Business Plan;
(v) Borrowers shall have paid all Lender Group Expenses incurred through the Closing Date in connection with the transactions evidenced by this Agreement;
(w) Agent shall have received copies of the executed written consents (to the payment extent required under the underlying contracts) of the Obligations;(i)
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The ------------------------------------------------------- obligation of the Lender Group (or any member thereof) to make the initial Advance, the Term Loan A, the Term Loan B, or issue the initial Letters of Credit Advance (or otherwise to extend make any initial extension of credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent and the LendersAgent, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before August 31October 30, 19992002;
(b) Agent shall have received all financing statements and PPSA Filings required by Agent, duly executed authorized by the Obligors, and Agent shall have received searches reflecting the filing of all such financing statementsapplicable Borrower or Guarantors;
(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:
(ia) this Agreement;the Control Agreements,
(ii) the Fee Letter;
(iii) the Lockbox Agreements;
(iv) the Disbursement Letter;
(vb) the Copyright Security Agreement;,
(vic) the Trademark Security Agreement;Disbursement Letter,
(viid) the Due Diligence Letter,
(e) the Fee Letter,
(f) the Guaranty;,
(viiig) the Cash Management Agreements,
(h) the Intercompany Subordination Agreement,
(i) the Interlender Agreement,
(j) the Officers' Certificate,
(k) the Patent Security Agreement;,
(ixl) the Suretyship Agreement;
(x) the Stock Pledge AgreementAgreements, together with all originals certificates representing the shares of certificates or other instruments (if any) evidencing the Stock pledged pursuant to the Pledge Agreementthereunder, as well as Stock powers with respect thereto endorsed in blank;,
(xim) the Intercompany Subordination Trademark Security Agreement;, and
(xiin) the Pay-Off Letters; Letter, together with (y) UCC termination statements and other documentation evidencing the termination by each Existing Lender Lenders of its their Liens in and to the properties and assets of the Obligors, Borrowers and (z) such other documentation evidencing the termination of Liens (including the UK Lien in respect of Lloyds Bank but excluding Permitted Liens) in and to the properties and assets of the Obligors outside the United StatesGuarantor;
(xiii) the Closing Date Assignments;
(xiv) the Registration Rights Agreement; and
(xv) the Control Agreement.
(d) Agent shall have received a certificate from the Secretary of each Obligor attesting to the resolutions of such Obligor's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Obligor is a party and authorizing specific officers of such Obligor to execute the same;
(e) Agent shall have received copies of each Obligor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of the applicable Obligor;
(f) Agent shall have received a certificate of status with respect to each Obligor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Obligor, which certificate shall indicate that such Obligor is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Obligor, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Obligor is in good standing in such jurisdictions;
(h) Agent shall have received such Collateral Access Agreements respecting those locations identified on Schedule 3.1(h); ---------------
(i) Agent shall have received satisfactory evidence that not less than the Required Library of all existing copyrights of Borrower required to be registered under Section 6(a) of the Copyright Security Agreement have been registered with the United States Copyright Office (or are the subject of a diligently prosecuted application therefor), and that all such copyrights and any proceeds thereof are specifically encumbered by the Copyright Security Agreement which has been filed with the United States Copyright Office;
(j) Agent shall have received a certificate of insurance, together with the endorsements thereto, in each case, as are required by Section 6.9, the form and substance of which shall be satisfactory to Agent and ----------- its counsel;
(k) Agent shall have received evidence that the Stock Purchase Agreement has been amended, the form and substance of such amendment to be satisfactory to Agent and its counsel;
(l) Agent shall have received opinions of the Specified Obligors' counsel in form and substance satisfactory to Agent in its Permitted Discretion;
(m) Agent shall have received evidence that the Permitted Subordinated Debt has been subordinated, on terms and conditions satisfactory to Agent in its sole discretion, to the payment of the Obligations;
Appears in 1 contract
Conditions Precedent to the Initial Extension of Credit. The ------------------------------------------------------- obligation of the each Lender Group (or any member thereof) to make the its initial Advance, the Term Loan A, the Term Loan B, or issue the initial Letters extension of Credit (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent and each Lender (the Lendersmaking of such initial 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 set forth belowprecedent:
(a) the Closing Date shall occur on or before August 31May 7, 19992004;
(b) Agent shall have received all financing statements required by Agenta Filing Authorization Letter, duly executed by each Company, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the Obligorsopinion of Agent, desirable to perfect the Agent's Liens in and to the Collateral, and Agent shall have received searches reflecting the filing of all such financing statements;
(c) Agent shall have received title searches with respect to the Real Property identified on Schedule 5.21, the results of which shall be reasonably satisfactory to Agent;
(d) 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) this Agreement;the Aircraft Mortgage,
(ii) the Fee Letter;Cash Management Agreements,
(iii) the Lockbox Control Agreements;,
(iv) the Disbursement Letter;,
(v) the Copyright Security Agreement;Fee Letter,
(vi) the Trademark Security Agreement;Guaranty,
(vii) the Guaranty;Intercompany Subordination Agreement,
(viii) the Security Agreement;Intercreditor Agreement between Agent and the holders of the Subordinated Debt,
(ix) the Suretyship Agreement;Mortgages with respect to the Real Properties identified on SCHEDULE R-1,
(x) the Pay-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 Companies (other than Liens on cash collateral in an amount not to exceed $8,258,205.30 securing the Companies' obligations under the Wachovia L/Cs), and
(xi) the Stock Pledge Agreement, together with all originals certificates representing the shares of certificates or other instruments (if any) evidencing the Stock pledged pursuant to the Pledge Agreementthereunder, as well as Stock powers with respect thereto endorsed in blank;
(xi) the Intercompany Subordination Agreement;
(xii) the Pay-Off Letters; together with (y) UCC termination statements and other documentation evidencing the termination by each Existing Lender of its Liens in and to the properties and assets of the Obligors, and (z) such other documentation evidencing the termination of Liens (including the UK Lien in respect of Lloyds Bank but excluding Permitted Liens) in and to the properties and assets of the Obligors outside the United States;
(xiii) the Closing Date Assignments;
(xiv) the Registration Rights Agreement; and
(xv) the Control Agreement.
(de) Agent shall have received a certificate from the Secretary of each Obligor Company (i) attesting to the resolutions of such ObligorCompany's Board board of Directors directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Obligor Company is a party and party, (ii) authorizing specific officers of such Obligor Company to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Company;
(ef) Agent shall have received copies of each ObligorCompany's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of the applicable Obligorsuch Company;
(fg) Agent shall have received a certificate of status with respect to each ObligorCompany, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such ObligorCompany, which certificate shall indicate that such Obligor Company is in good standing in such jurisdiction;
(gh) Agent shall have received certificates of status with respect to each ObligorCompany, each dated within 15 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 Company) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Obligor Company is in good standing in such jurisdictions;
(h) Agent shall have received such Collateral Access Agreements respecting those locations identified on Schedule 3.1(h); ---------------
(i) Agent shall have received satisfactory evidence that not less than the Required Library of all existing copyrights of Borrower required to be registered under Section 6(a) of the Copyright Security Agreement have been registered with the United States Copyright Office (or are the subject of a diligently prosecuted application therefor), and that all such copyrights and any proceeds thereof are specifically encumbered by the Copyright Security Agreement which has been filed with the United States Copyright Office;
(j) Agent shall have received a certificate of insurance, together with the endorsements thereto, in each case, as are required by Section 6.9SECTION 6.8, the form and substance of which shall be satisfactory to Agent and ----------- its counselAgent;
(k) Agent shall have received evidence that the Stock Purchase Agreement has been amended, the form and substance of such amendment to be satisfactory to Agent and its counsel;
(l) Agent shall have received opinions of the Specified Obligors' counsel in form and substance satisfactory to Agent in its Permitted Discretion;
(m) Agent shall have received evidence that the Permitted Subordinated Debt has been subordinated, on terms and conditions satisfactory to Agent in its sole discretion, to the payment of the Obligations;
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Conditions Precedent to the Initial Extension of Credit. The ------------------------------------------------------- obligation of the Lender Group (or any member thereof) to make the initial Advance, the Term Loan A, the Term Loan B, or issue the initial Letters of Credit Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent and the LendersAgent, of each of the conditions precedent set forth below:
(a) the Closing Date shall occur on or before August 31July 13, 19992001;
(b) Agent shall have received all financing statements required by Agent, duly executed by the Obligorsapplicable Borrowers, and Agent shall have received searches reflecting the filing of all such financing statements;
(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) this Agreement;the Control Agreements,
(ii) the Fee Letter;Copyright Security Agreement,
(iii) the Lockbox Agreements;Disbursement Letter,
(iv) the Disbursement Due Diligence Letter;,
(v) the Copyright Security Agreement;Fee Letter,
(vi) the Trademark Security Agreement;Cash Management Agreements,
(vii) the Guaranty;Officers' Certificate,
(viii) the Security Agreement;
(ix) the Suretyship Agreement;
(x) the Stock Pledge Agreement, together with all originals certificates representing the shares of certificates or other instruments (if any) evidencing the Stock pledged pursuant thereunder (to the Pledge Agreementextent such shares are certificated), as well as Stock powers endorsed in blank or other proper instruments of transfer with respect thereto endorsed in blank;thereto,
(ix) the Trademark Security Agreement,
(x) the Contribution Agreement,
(xi) the Intercompany Subordination Agreement;,
(xii) the Pay-Off Letters; Letter, together with (y) UCC termination statements and other documentation evidencing the termination by each Existing Lender of its Liens in and to the properties and assets of the Obligors, and (z) such other documentation evidencing the termination of Liens (including the UK Lien in respect of Lloyds Bank but excluding Permitted Liens) in and to the properties and assets of the Obligors outside the United StatesBorrowers;
(xiii) the Closing Date AssignmentsSource Code Escrow Agreement;
(xiv) the Registration Rights Agreement; and
(xv) the Control Agreement.
(d) Agent shall have received a certificate from the Secretary of each Obligor attesting to the resolutions of such Obligor's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Obligor is a party and authorizing specific officers of such Obligor to execute the same;
(e) Agent shall have received copies of each Obligor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of the applicable Obligor;
(f) Agent shall have received a certificate of status with respect to each Obligor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Obligor, which certificate shall indicate that such Obligor is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Obligor, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Obligor is in good standing in such jurisdictions;
(h) Agent shall have received such Collateral Access Agreements respecting those locations identified on Schedule 3.1(h); ---------------
(i) Agent shall have received satisfactory evidence that not less than the Required Library of all existing copyrights of Borrower required to be registered under Section 6(a) of the Copyright Security Agreement have been registered with the United States Copyright Office (or are the subject of a diligently prosecuted application therefor), and that all such copyrights and any proceeds thereof are specifically encumbered by the Copyright Security Agreement which has been filed with the United States Copyright Office;
(j) Agent shall have received a certificate of insurance, together with the endorsements thereto, in each case, as are required by Section 6.9, the form and substance of which shall be satisfactory to Agent and ----------- its counsel;
(k) Agent shall have received evidence that the Stock Purchase Agreement has been amended, the form and substance of such amendment to be satisfactory to Agent and its counsel;
(l) Agent shall have received opinions of the Specified Obligors' counsel in form and substance satisfactory to Agent in its Permitted Discretion;
(m) Agent shall have received evidence that the Permitted Subordinated Debt has been subordinated, on terms and conditions satisfactory to Agent in its sole discretion, to the payment of the Obligations;
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