Conditions to Credit Extensions. Lenders, Issuing Bank and the Administrative Agent shall not be required to include the Existing Letters of Credit as Letters of Credit hereunder until the date on which each of the following conditions has been satisfied: (a) the Administrative Agent shall have received the following, each dated the date of the initial Loan or as of an earlier date acceptable to the Administrative Agent, in form and substance satisfactory to the Administrative Agent and its counsel: (i) a Note in favor of each Lender (if requested by such Lender), each duly executed by the Borrower; (ii) each agreement establishing each lockbox and Dominion Account required by this Agreement and each Deposit Account Control Agreement for each Dominion Account and each Concentration Account that is maintained as of the Closing Date, duly executed by the Borrower and BofA or a financial institution acceptable to the Administrative Agent; (iii) an initial Borrowing Base Certificate, duly executed on behalf of the Borrower by a Responsible Officer; (iv) (A) unaudited consolidated Financial Statements of the Borrower for the Fiscal Year ended December 31, 2005, and unaudited consolidated Financial Statements of the Borrower for the three month period ending March 31, 2006, certified by the Borrower pursuant to a certificate executed on its behalf by a Responsible Officer, and (B) a certificate of the Borrower, executed on its behalf by a Responsible Officer, certifying that, from December 31, 2005 until the Closing Date, no change, event, occurrence or development or event involving a prospective change in the business, prospects, operations, results of operations, assets, liabilities or condition (financial or otherwise) of the Borrower has occurred which has had or could reasonably be expected to have a Material Adverse Effect (provided that, for this purpose, no information previously disclosed to the Administrative Agent by the Borrower shall be deemed to indicate that a Material Adverse Effect has occurred or exists prior to Closing Date, and that all information provided by or on behalf of the Borrower to the Administrative Agent hereunder or in connection herewith is true and correct in all material respects; (v) an opinion of counsel for the Borrower covering such matters incident to the transactions contemplated by this Agreement as the Administrative Agent may reasonably require, which such counsel is hereby requested by the Borrower to provide; (vi) certified copies of all policies of insurance required by this Agreement and the other Loan Documents, together with loss payee endorsements for all such policies naming the Administrative Agent as lender loss payee with respect to casualty policies, and an additional insured with respect to liability policies; (vii) copies of the Governing Documents of the Borrower and a copy of the resolutions of the Board of Directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the other Loan Documents to which the Borrower is or is to be a party, and the transactions contemplated hereby and thereby, attached to which is a certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) that such copies of the Governing Documents and resolutions (or similar evidence of authorization) relating to the Borrower are true, complete and accurate copies thereof, have not been amended or modified as of the date of such certificate and are in full force and effect and (B) the incumbency, names and true signatures of the officers of the Borrower authorized to sign the Loan Documents to which it is a party; (viii) a certified copy of a certificate of the Secretary of State of the state of incorporation of the Borrower, dated within fifteen days of the Closing Date, listing the certificate of incorporation of the Borrower and each amendment thereto on file in such official's office and certifying that (A) such amendments are the only amendments to such certificate of incorporation on file in that office, (B) the Borrower has paid all franchise taxes to the date of such certificate and (C) the Borrower is in good standing in that jurisdiction; (ix) good standing certificates from the Secretary of State of New York and Georgia, being states in which the Borrower is qualified as a foreign corporation, and from the Secretary of State of Delaware, the jurisdiction of the Borrower's incorporation, each dated within fifteen days of the Closing Date; (x) the Fee Letter, duly executed by the Borrower; (xi) the Business Plan for 2006, 2007 and 2008; (xii) the Licensor Agreement, duly executed by WP IP LLC and the Borrower; and (xiii) such other agreements, instruments, documents and evidence as the Administrative Agent deems necessary in its reasonable discretion in connection with the transactions contemplated hereby. (b) Except for the matters referred to on Schedule 6.1(q), there shall be no pending or, to the knowledge of the Borrower, threatened litigation, proceeding, inquiry or other action (i) seeking an injunction or other restraining order, damages or other relief with respect to the transactions contemplated by this Agreement or the other Loan Documents or (ii) which affects or could affect the business, operations, assets, liabilities or condition (financial or otherwise) of the Borrower, except, in the case of clause (ii), where such litigation, proceeding, inquiry or other action could not reasonably be expected to have a Material Adverse Effect. (c) The Borrower shall have paid (i) all reasonable legal fees of the Administrative Agent in connection with the negotiation, preparation, execution and delivery of the Loan Documents and (ii) the fees payable under the Fee Letter and the expenses payable by the Borrower as provided in the expense reimbursement letter dated April 17, 2006, by the Borrower to BofA, and all other fees referred to in this Agreement that are required to be paid on the Closing Date. (d) Except for the filing of the financing statements under the UCC necessary to perfect the Lien in the Collateral, no consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person is required to be made by the Borrower in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the other Loan Documents or the consummation of the transactions contemplated hereby or thereby or the continuing operations of the Borrower following the consummation of such transactions. (e) The Borrower shall be in compliance with all Requirements of Law and its Material Contracts, other than such noncompliance that could not reasonably be expected to have a Material Adverse Effect. (f) The Liens in favor of the Administrative Agent relating to the Collateral shall have been duly perfected and shall constitute first priority Liens, and the Collateral shall be free and clear of all Liens other than Liens in favor of the Administrative Agent and Permitted Liens. (g) After giving effect to all Loans to be made and Letters of Credit to be issued on the Closing Date, the Excess Availability plus the Borrower's cash and Cash Equivalents shall exceed $200,000,000 on the Closing Date. Contemporaneously with the delivery of the executed signature pages to this Agreement by BofA to the Borrower, the conditions set forth in this Section 5.1 shall be and be deemed to be either satisfied or waived.
Appears in 1 contract
Sources: Loan and Security Agreement (Westpoint International Inc)
Conditions to Credit Extensions. Lenders, The obligation of the Lenders to make each Revolving Loan and of the Issuing Bank and the Administrative Agent shall not be required Banks to include the Existing Letters issue each Letter of Credit as Letters (other than any Existing Letter of Credit hereunder until the date on which each of Credit) is also subject to the following conditions has been satisfied:precedent (provided that the conditions precedent described in clauses (b) and (c) below shall not apply to the initial Credit Events on the Closing Date):
(a) the The Administrative Agent shall have received a notice with respect to such Borrowing or issuance, as the followingcase may be, each dated as required by Article 2, and in the date case of the initial Loan or as issuance of an earlier date acceptable to a Letter of Credit, the Administrative Agent, applicable Issuing Bank shall have received notice with respect thereto in form and substance satisfactory to the Administrative Agent and its counsel:accordance Section 2.15.
(ib) a Note All representations and warranties contained in favor of each Lender (if requested by such Lender), each duly executed by the Borrower;
(ii) each agreement establishing each lockbox and Dominion Account required by this Agreement and each Deposit Account Control Agreement for each Dominion Account and each Concentration Account that is maintained as of the Closing Date, duly executed by the Borrower and BofA other Credit Documents or a financial institution acceptable to the Administrative Agent;
otherwise made in writing in connection herewith or therewith (iii) an initial including in any Borrowing Base Certificate, duly executed on behalf of the Borrower by a Responsible Officer;
(iv) (A) unaudited consolidated Financial Statements of the Borrower for the Fiscal Year ended December 31, 2005, and unaudited consolidated Financial Statements of the Borrower for the three month period ending March 31, 2006, certified by the Borrower pursuant to a certificate executed on its behalf by a Responsible Officer, and (B) a certificate of the Borrower, executed on its behalf by a Responsible Officer, certifying that, from December 31, 2005 until the Closing Date, no change, event, occurrence or development or event involving a prospective change in the business, prospects, operations, results of operations, assets, liabilities or condition (financial or otherwise) of the Borrower has occurred which has had or could reasonably be expected to have a Material Adverse Effect (provided that, for this purpose, no information previously disclosed to the Administrative Agent by the Borrower shall be deemed to indicate that a Material Adverse Effect has occurred or exists prior to Closing Date, and that all information provided by or on behalf of the Borrower to the Administrative Agent hereunder or in connection herewith is true and correct in all material respects;
(v) an opinion of counsel for the Borrower covering such matters incident to the transactions contemplated by this Agreement as the Administrative Agent may reasonably require, which such counsel is hereby requested by the Borrower to provide;
(vi) certified copies of all policies of insurance required by this Agreement respects on and the other Loan Documents, together with loss payee endorsements for all such policies naming the Administrative Agent as lender loss payee with respect to casualty policies, and an additional insured with respect to liability policies;
(vii) copies of the Governing Documents of the Borrower and a copy of the resolutions of the Board of Directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the other Loan Documents to which the Borrower is or is to be a party, and the transactions contemplated hereby and thereby, attached to which is a certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) that such copies of the Governing Documents and resolutions (or similar evidence of authorization) relating to the Borrower are true, complete and accurate copies thereof, have not been amended or modified as of the date of such certificate each Borrowing or the issuance of each Letter of Credit hereunder with the same effect as if made on and are in full force and effect and (B) the incumbency, names and true signatures of the officers of the Borrower authorized to sign the Loan Documents to which it is a party;
(viii) a certified copy of a certificate of the Secretary of State of the state of incorporation of the Borrower, dated within fifteen days of the Closing Date, listing the certificate of incorporation of the Borrower and each amendment thereto on file in such official's office and certifying that (A) such amendments are the only amendments to such certificate of incorporation on file in that office, (B) the Borrower has paid all franchise taxes to the date as of such certificate date, other than representations and (C) the Borrower is in good standing in warranties that jurisdiction;
(ix) good standing certificates from the Secretary of State of New York relate solely to an earlier date and Georgia, being states in other than representations and warranties which the Borrower is are qualified as a foreign corporation, and from the Secretary of State of Delaware, the jurisdiction of the Borrower's incorporation, each dated within fifteen days of the Closing Date;
(x) the Fee Letter, duly executed by the Borrower;
(xi) the Business Plan for 2006, 2007 and 2008;
(xii) the Licensor Agreement, duly executed by WP IP LLC and the Borrower; and
(xiii) such other agreements, instruments, documents and evidence as the Administrative Agent deems necessary in its reasonable discretion in connection with the transactions contemplated hereby.
(b) Except for the matters referred to on Schedule 6.1(q), there shall be no pending or, to the knowledge of the Borrower, threatened litigation, proceeding, inquiry “materiality” or other action (i) seeking an injunction or other restraining order, damages or other relief with respect to the transactions contemplated by this Agreement or the other Loan Documents or (ii) which affects or could affect the business, operations, assets, liabilities or condition (financial or otherwise) of the Borrower, except, in the case of clause (ii), where such litigation, proceeding, inquiry or other action could not reasonably be expected to have a “Material Adverse Effect”, each of which shall be true and correct in all respects.
(c) The Borrower On the date of each Borrowing hereunder and the issuance of each Letter of Credit and after giving effect thereto, no Default or Event of Default shall have paid (i) all reasonable legal fees of occurred and be continuing. The request by the Administrative Agent in connection with the negotiationLead Borrower for, preparation, execution and delivery of the Loan Documents and (ii) the fees payable under the Fee Letter and the expenses payable acceptance by any Borrower of, each extension of credit hereunder shall be deemed to be a representation and warranty by the Borrower as provided in Credit Parties that the expense reimbursement letter dated April 17, 2006, by the Borrower to BofA, and all other fees referred to conditions specified in this Agreement Section 7.1 have been satisfied at that are required time and that, after giving effect to be paid on the Closing Date.
(d) Except for the filing such extension of the financing statements under the UCC necessary to perfect the Lien in the Collateral, no consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person is required to be made by the Borrower in connection with the execution, delivery, performance, validity or enforceability of this Agreementcredit, the Notes or the other Loan Documents or the consummation of the transactions contemplated hereby or thereby or the continuing operations of the Borrower following the consummation of such transactions.
(e) The Borrower Borrowers shall continue to be in compliance with all Requirements of Law and its Material Contracts, other than such noncompliance that could not reasonably be expected to have a Material Adverse Effectthe Borrowing Base.
(f) The Liens in favor of the Administrative Agent relating to the Collateral shall have been duly perfected and shall constitute first priority Liens, and the Collateral shall be free and clear of all Liens other than Liens in favor of the Administrative Agent and Permitted Liens.
(g) After giving effect to all Loans to be made and Letters of Credit to be issued on the Closing Date, the Excess Availability plus the Borrower's cash and Cash Equivalents shall exceed $200,000,000 on the Closing Date. Contemporaneously with the delivery of the executed signature pages to this Agreement by BofA to the Borrower, the conditions set forth in this Section 5.1 shall be and be deemed to be either satisfied or waived.
Appears in 1 contract
Conditions to Credit Extensions. Lenders, The obligation of the Lenders to make each Revolving Loan and of the Issuing Bank and the Administrative Agent shall not be required Banks to include the Existing Letters issue each Letter of Credit as Letters (other than any Existing Letter of Credit hereunder until the date on which each of Credit) is also subject to the following conditions has been satisfiedprecedent:
(a) the The Administrative Agent shall have received a notice with respect to such Borrowing or issuance, as the followingcase may be, each dated as required by Article 2, and in the date case of the initial Loan or as issuance of an earlier date acceptable to a Letter of Credit, the Administrative Agent, applicable Issuing Bank shall have received notice with respect thereto in form and substance satisfactory to the Administrative Agent and its counsel:accordance Section 2.15.
(ib) a Note All representations and warranties contained in favor of each Lender (if requested by such Lender), each duly executed by the Borrower;
(ii) each agreement establishing each lockbox and Dominion Account required by this Agreement and each Deposit Account Control Agreement for each Dominion Account and each Concentration Account that is maintained as of the Closing Date, duly executed by the Borrower and BofA other Credit Documents or a financial institution acceptable to the Administrative Agent;
otherwise made in writing in connection herewith or therewith (iii) an initial including in any Borrowing Base Certificate, duly executed on behalf of the Borrower by a Responsible Officer;
(iv) (A) unaudited consolidated Financial Statements of the Borrower for the Fiscal Year ended December 31, 2005, and unaudited consolidated Financial Statements of the Borrower for the three month period ending March 31, 2006, certified by the Borrower pursuant to a certificate executed on its behalf by a Responsible Officer, and (B) a certificate of the Borrower, executed on its behalf by a Responsible Officer, certifying that, from December 31, 2005 until the Closing Date, no change, event, occurrence or development or event involving a prospective change in the business, prospects, operations, results of operations, assets, liabilities or condition (financial or otherwise) of the Borrower has occurred which has had or could reasonably be expected to have a Material Adverse Effect (provided that, for this purpose, no information previously disclosed to the Administrative Agent by the Borrower shall be deemed to indicate that a Material Adverse Effect has occurred or exists prior to Closing Date, and that all information provided by or on behalf of the Borrower to the Administrative Agent hereunder or in connection herewith is true and correct in all material respects;
(v) an opinion of counsel for the Borrower covering such matters incident to the transactions contemplated by this Agreement respects on and as the Administrative Agent may reasonably require, which such counsel is hereby requested by the Borrower to provide;
(vi) certified copies of all policies of insurance required by this Agreement and the other Loan Documents, together with loss payee endorsements for all such policies naming the Administrative Agent as lender loss payee with respect to casualty policies, and an additional insured with respect to liability policies;
(vii) copies of the Governing Documents date of each Borrowing or the Borrower issuance of each Letter of Credit hereunder (other than representations and a copy of warranties which are qualified by “materiality” or “Material Adverse Effect”, in which case such representations and warranties shall be true and correct in all respects) with the resolutions of the Board of Directors of the Borrower authorizing the execution, delivery same effect as though such representations and performance of this Agreement, the other Loan Documents to which the Borrower is or is to be a party, warranties had been made on and the transactions contemplated hereby and thereby, attached to which is a certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) that such copies of the Governing Documents and resolutions (or similar evidence of authorization) relating to the Borrower are true, complete and accurate copies thereof, have not been amended or modified as of the date of such certificate Credit Event (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (other than any such representations and warranties which are qualified as to materiality, Material Adverse Effect or similar language, in full force which case such representations shall be true and effect and (Bcorrect in all respects) the incumbency, names and true signatures of the officers of the Borrower authorized to sign the Loan Documents to which it is a party;
(viii) a certified copy of a certificate of the Secretary of State of the state of incorporation of the Borrower, dated within fifteen days of the Closing Date, listing the certificate of incorporation of the Borrower and each amendment thereto on file in such official's office and certifying that (A) such amendments are the only amendments to such certificate of incorporation on file in that office, (B) the Borrower has paid all franchise taxes to the date as of such certificate and (C) the Borrower is in good standing in that jurisdiction;
(ix) good standing certificates from the Secretary of State of New York and Georgia, being states in which the Borrower is qualified as a foreign corporation, and from the Secretary of State of Delaware, the jurisdiction of the Borrower's incorporation, each dated within fifteen days of the Closing Date;
(x) the Fee Letter, duly executed by the Borrower;
(xi) the Business Plan for 2006, 2007 and 2008;
(xii) the Licensor Agreement, duly executed by WP IP LLC and the Borrower; and
(xiii) such other agreements, instruments, documents and evidence as the Administrative Agent deems necessary in its reasonable discretion in connection with the transactions contemplated hereby.
(b) Except for the matters referred to on Schedule 6.1(q), there shall be no pending or, to the knowledge of the Borrower, threatened litigation, proceeding, inquiry or other action (i) seeking an injunction or other restraining order, damages or other relief with respect to the transactions contemplated by this Agreement or the other Loan Documents or (ii) which affects or could affect the business, operations, assets, liabilities or condition (financial or otherwise) of the Borrower, except, in the case of clause (ii), where such litigation, proceeding, inquiry or other action could not reasonably be expected to have a Material Adverse Effectearlier date.
(c) The Borrower On the date of each Borrowing hereunder and the issuance of each Letter of Credit and after giving effect thereto, no Default or Event of Default shall have paid (i) all reasonable legal fees of occurred and be continuing. The request by the Administrative Agent in connection with the negotiationLead Borrower for, preparation, execution and delivery of the Loan Documents and (ii) the fees payable under the Fee Letter and the expenses payable acceptance by any Borrower of, each extension of credit hereunder shall be deemed to be a representation and warranty by the Borrower as provided in Credit Parties that the expense reimbursement letter dated April 17, 2006, by the Borrower to BofA, and all other fees referred to conditions specified in this Agreement Section 7.1 have been satisfied at that are required time and that, after giving effect to be paid on the Closing Date.
(d) Except for the filing such extension of the financing statements under the UCC necessary to perfect the Lien in the Collateral, no consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person is required to be made by the Borrower in connection with the execution, delivery, performance, validity or enforceability of this Agreementcredit, the Notes or the other Loan Documents or the consummation of the transactions contemplated hereby or thereby or the continuing operations of the Borrower following the consummation of such transactions.
(e) The Borrower Borrowers shall continue to be in compliance with all Requirements of Law and its Material Contracts, other than such noncompliance that could not reasonably be expected to have a Material Adverse Effectthe Borrowing Base.
(f) The Liens in favor of the Administrative Agent relating to the Collateral shall have been duly perfected and shall constitute first priority Liens, and the Collateral shall be free and clear of all Liens other than Liens in favor of the Administrative Agent and Permitted Liens.
(g) After giving effect to all Loans to be made and Letters of Credit to be issued on the Closing Date, the Excess Availability plus the Borrower's cash and Cash Equivalents shall exceed $200,000,000 on the Closing Date. Contemporaneously with the delivery of the executed signature pages to this Agreement by BofA to the Borrower, the conditions set forth in this Section 5.1 shall be and be deemed to be either satisfied or waived.
Appears in 1 contract
Conditions to Credit Extensions. Lenders, Issuing Bank and after the Administrative Agent shall not be required to include the Existing Letters of Credit as Letters of Credit hereunder until the date on which each of the following conditions has been satisfied:2021 Amendment Effective Date.
(a) the Administrative Agent shall have received the following, each dated the date of the initial Loan or as of an earlier date acceptable to the Administrative Agent, in form The representations and substance satisfactory to the Administrative Agent and its counsel:
(i) a Note in favor warranties of each Lender (if requested by such Lender), each duly executed by the Borrower;
(ii) each agreement establishing each lockbox and Dominion Account required by this Agreement Loan Party set forth in Article V and each Deposit Account Control Agreement for Loan Party in each Dominion Account and each Concentration Account that is maintained as of the Closing Date, duly executed by the Borrower and BofA or a financial institution acceptable to the Administrative Agent;
(iii) an initial Borrowing Base Certificate, duly executed on behalf of the Borrower by a Responsible Officer;
(iv) (A) unaudited consolidated Financial Statements of the Borrower for the Fiscal Year ended December 31, 2005, and unaudited consolidated Financial Statements of the Borrower for the three month period ending March 31, 2006, certified by the Borrower pursuant to a certificate executed on its behalf by a Responsible Officer, and (B) a certificate of the Borrower, executed on its behalf by a Responsible Officer, certifying that, from December 31, 2005 until the Closing Date, no change, event, occurrence or development or event involving a prospective change in the business, prospects, operations, results of operations, assets, liabilities or condition (financial or otherwise) of the Borrower has occurred which has had or could reasonably be expected to have a Material Adverse Effect (provided that, for this purpose, no information previously disclosed to the Administrative Agent by the Borrower other Loan Document shall be deemed to indicate that a Material Adverse Effect has occurred or exists prior to Closing Date, and that all information provided by or on behalf of the Borrower to the Administrative Agent hereunder or in connection herewith is true and correct in all material respects;
(v) an opinion of counsel for the Borrower covering such matters incident to the transactions contemplated by this Agreement as the Administrative Agent may reasonably require, which such counsel is hereby requested by the Borrower to provide;
(vi) certified copies of all policies of insurance required by this Agreement respects on and the other Loan Documents, together with loss payee endorsements for all such policies naming the Administrative Agent as lender loss payee with respect to casualty policies, and an additional insured with respect to liability policies;
(vii) copies of the Governing Documents of the Borrower and a copy of the resolutions of the Board of Directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the other Loan Documents to which the Borrower is or is to be a party, and the transactions contemplated hereby and thereby, attached to which is a certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) that such copies of the Governing Documents and resolutions (or similar evidence of authorization) relating to the Borrower are true, complete and accurate copies thereof, have not been amended or modified as of the date of such certificate Credit Extension with the same effect as though made on and are in full force and effect and (B) the incumbencyas of such date, names and true signatures of the officers of the Borrower authorized to sign the Loan Documents to which it is a party;
(viii) a certified copy of a certificate of the Secretary of State of the state of incorporation of the Borrower, dated within fifteen days of the Closing Date, listing the certificate of incorporation of the Borrower and each amendment thereto on file in such official's office and certifying that (A) such amendments are the only amendments to such certificate of incorporation on file in that office, (B) the Borrower has paid all franchise taxes except to the date extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such certificate earlier date; provided, that any representation and (C) the Borrower is in good standing in warranty that jurisdiction;
(ix) good standing certificates from the Secretary of State of New York and Georgia, being states in which the Borrower is qualified as a foreign corporation, to “materiality,” “Material Adverse Effect” or similar language shall be true and from the Secretary of State of Delaware, the jurisdiction of the Borrower's incorporation, each dated within fifteen days of the Closing Date;
correct (xafter giving effect to any qualification therein) the Fee Letter, duly executed by the Borrower;
(xi) the Business Plan for 2006, 2007 and 2008;
(xii) the Licensor Agreement, duly executed by WP IP LLC and the Borrower; and
(xiii) in all respects on such other agreements, instruments, documents and evidence as the Administrative Agent deems necessary in its reasonable discretion in connection with the transactions contemplated herebyrespective dates.
(b) Except for No Default shall exist or would result from such proposed Credit Extension or from the matters referred to on Schedule 6.1(q), there shall be no pending or, to the knowledge application of the Borrower, threatened litigation, proceeding, inquiry or other action (i) seeking an injunction or other restraining order, damages or other relief with respect to the transactions contemplated by this Agreement or the other Loan Documents or (ii) which affects or could affect the business, operations, assets, liabilities or condition (financial or otherwise) of the Borrower, except, in the case of clause (ii), where such litigation, proceeding, inquiry or other action could not reasonably be expected to have a Material Adverse Effectproceeds therefrom.
(c) The Borrower Administrative Agent and, if applicable, the relevant L/C Issuer or Alternative L/C Issuer or the Swing Line Lender, as applicable, shall have paid (i) all reasonable legal fees of the Administrative Agent received a Request for Credit Extension in connection accordance with the negotiation, preparation, execution and delivery of the Loan Documents and (ii) the fees payable under the Fee Letter and the expenses payable by the Borrower as provided in the expense reimbursement letter dated April 17, 2006, by the Borrower to BofA, and all other fees referred to in this Agreement that are required to be paid on the Closing Daterequirements hereof.
(d) Except It shall not be unlawful in any applicable jurisdiction for that Lender to perform its obligations to make the filing relevant Credit Extension on the date of such Credit Extension, as applicable. Each Request for Credit Extension after the financing statements under the UCC necessary 2021 Amendment Effective Date (other than (i) with respect to perfect the Lien in the Collateral, no consent or authorization of, filing with or other act by or in respect a Limited Condition Transaction (ii) a Committed Loan Notice requesting only a conversion of any Governmental Authority or any other Person is required Loans to be made by the Borrower in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the other Loan Documents Type, or a continuation of Eurocurrency Rate Loans or SOFR Loans, as applicable and (iii) any Additional Facility Loans (unless the consummation of the transactions contemplated hereby or thereby or the continuing operations of the Borrower following the consummation of applicable Additional Facility Joinder Agreement specifies that this Section 4.03 applies to such transactions.
(eAdditional Facility Loans)) The submitted by any Borrower shall be in compliance with all Requirements of Law and its Material Contracts, other than such noncompliance that could not reasonably be expected to have a Material Adverse Effect.
(f) The Liens in favor of the Administrative Agent relating to the Collateral shall have been duly perfected and shall constitute first priority Liens, and the Collateral shall be free and clear of all Liens other than Liens in favor of the Administrative Agent and Permitted Liens.
(g) After giving effect to all Loans to be made and Letters of Credit to be issued on the Closing Date, the Excess Availability plus the Borrower's cash and Cash Equivalents shall exceed $200,000,000 on the Closing Date. Contemporaneously with the delivery of the executed signature pages to this Agreement by BofA to the Borrower, the conditions set forth in this Section 5.1 shall be and be deemed to be either a representation and warranty that the conditions specified in Sections 4.03(a) and (b) have been satisfied or waivedon and as of the date of the applicable Credit Extension.
Appears in 1 contract
Conditions to Credit Extensions. LendersThe obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type, Issuing Bank and the Administrative Agent shall not be required or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans) is subject to include the Existing Letters of Credit as Letters of Credit hereunder until the date on which each of the following conditions has been satisfiedprecedent:
(a) the Administrative Agent shall have received the following, each dated the date The representations and warranties of the initial Loan or as of an earlier date acceptable to the Administrative Agent, in form and substance satisfactory to the Administrative Agent and its counsel:
(i) a Note in favor of each Lender (if requested by such Lender), each duly executed by the Borrower;
(ii) each agreement establishing each lockbox and Dominion Account required by this Agreement Borrowers and each Deposit Account Control Agreement for each Dominion Account other Loan Party contained in Article V (other than those set forth and each Concentration Account that is maintained as of the Closing Datecontained in Sections 5.05(c) and 5.06) or any other Loan Document, duly executed by the Borrower and BofA or a financial institution acceptable to the Administrative Agent;
(iii) an initial Borrowing Base Certificate, duly executed on behalf of the Borrower by a Responsible Officer;
(iv) (A) unaudited consolidated Financial Statements of the Borrower for the Fiscal Year ended December 31, 2005, and unaudited consolidated Financial Statements of the Borrower for the three month period ending March 31, 2006, certified by the Borrower pursuant to a certificate executed on its behalf by a Responsible Officer, and (B) a certificate of the Borrower, executed on its behalf by a Responsible Officer, certifying that, from December 31, 2005 until the Closing Date, no change, event, occurrence or development or event involving a prospective change which are contained in the business, prospects, operations, results of operations, assets, liabilities or condition (financial or otherwise) of the Borrower has occurred which has had or could reasonably be expected to have a Material Adverse Effect (provided that, for this purpose, no information previously disclosed to the Administrative Agent by the Borrower shall be deemed to indicate that a Material Adverse Effect has occurred or exists prior to Closing Date, and that all information provided by or on behalf of the Borrower to the Administrative Agent hereunder any document furnished at any time under or in connection herewith is or therewith, shall be true and correct in all material respects;
(v) an opinion of counsel for the Borrower covering such matters incident to the transactions contemplated by this Agreement as the Administrative Agent may reasonably require, which such counsel is hereby requested by the Borrower to provide;
(vi) certified copies of all policies of insurance required by this Agreement on and the other Loan Documents, together with loss payee endorsements for all such policies naming the Administrative Agent as lender loss payee with respect to casualty policies, and an additional insured with respect to liability policies;
(vii) copies of the Governing Documents of the Borrower and a copy of the resolutions of the Board of Directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the other Loan Documents to which the Borrower is or is to be a party, and the transactions contemplated hereby and thereby, attached to which is a certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) that such copies of the Governing Documents and resolutions (or similar evidence of authorization) relating to the Borrower are true, complete and accurate copies thereof, have not been amended or modified as of the date of such certificate Credit Extension, except to the extent that such representations and are warranties specifically refer to an earlier date, in full force which case they shall be so true and effect correct as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (Bb) the incumbency, names and true signatures of the officers of the Borrower authorized Section 5.05 shall be deemed to sign the Loan Documents to which it is a party;
(viii) a certified copy of a certificate of the Secretary of State of the state of incorporation of the Borrower, dated within fifteen days of the Closing Date, listing the certificate of incorporation of the Borrower and each amendment thereto on file in such official's office and certifying that (A) such amendments are the only amendments to such certificate of incorporation on file in that office, (B) the Borrower has paid all franchise taxes refer to the date of such certificate most recent statements furnished pursuant to clauses (a) and (C) the Borrower is in good standing in that jurisdiction;
(ix) good standing certificates from the Secretary b), respectively, of State of New York and Georgia, being states in which the Borrower is qualified as a foreign corporation, and from the Secretary of State of Delaware, the jurisdiction of the Borrower's incorporation, each dated within fifteen days of the Closing Date;
(x) the Fee Letter, duly executed by the Borrower;
(xi) the Business Plan for 2006, 2007 and 2008;
(xii) the Licensor Agreement, duly executed by WP IP LLC and the Borrower; and
(xiii) such other agreements, instruments, documents and evidence as the Administrative Agent deems necessary in its reasonable discretion in connection with the transactions contemplated herebySection 6.01.
(b) Except for No Default or Event of Default shall exist, or would result from such proposed Credit Extension or from the matters referred to on Schedule 6.1(q), there shall be no pending or, to the knowledge application of the Borrower, threatened litigation, proceeding, inquiry or other action (i) seeking an injunction or other restraining order, damages or other relief with respect to the transactions contemplated by this Agreement or the other Loan Documents or (ii) which affects or could affect the business, operations, assets, liabilities or condition (financial or otherwise) of the Borrower, except, in the case of clause (ii), where such litigation, proceeding, inquiry or other action could not reasonably be expected to have a Material Adverse Effectproceeds thereof.
(c) The Borrower Administrative Agent and, if applicable, the L/C Issuers or the Swing Line Lender shall have paid (i) all reasonable legal fees of the Administrative Agent received a Request for Credit Extension in connection accordance with the negotiation, preparation, execution and delivery of the Loan Documents and (ii) the fees payable under the Fee Letter and the expenses payable by the Borrower as provided in the expense reimbursement letter dated April 17, 2006, by the Borrower to BofA, and all other fees referred to in this Agreement that are required to be paid on the Closing Daterequirements hereof.
(d) Except for In the filing case of the financing statements under the UCC necessary a Credit Extension to perfect the Lien be denominated in an Alternative Currency, there shall not have occurred any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which in the Collateral, no consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person is required to be made by the Borrower in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the other Loan Documents or the consummation of the transactions contemplated hereby or thereby or the continuing operations of the Borrower following the consummation of such transactions.
(e) The Borrower shall be in compliance with all Requirements of Law and its Material Contracts, other than such noncompliance that could not reasonably be expected to have a Material Adverse Effect.
(f) The Liens in favor reasonable opinion of the Administrative Agent relating to Agent, the Collateral shall have been duly perfected and shall constitute first priority Liens, and Required Lenders (in the Collateral shall be free and clear case of all Liens other than Liens in favor of the Administrative Agent and Permitted Liens.
(g) After giving effect to all any Loans to be made and Letters denominated in an Alternative Currency) or the relevant L/C Issuer (in the case of any Letter of Credit to be issued on denominated in an Alternative Currency) would make it impracticable for such Credit Extension to be denominated in the Closing Date, the Excess Availability plus the Borrower's cash and Cash Equivalents shall exceed $200,000,000 on the Closing Daterelevant Alternative Currency. Contemporaneously with the delivery Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of the executed signature pages to this Agreement by BofA Committed Loans to the Borrower, other Type or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans) submitted by the conditions set forth in this Section 5.1 Borrowers shall be and be deemed to be either a representation and warranty that the conditions specified in Sections 4.02(b) and 4.02(c) have been satisfied or waivedon and as of the date of the applicable Credit Extension.
Appears in 1 contract
Conditions to Credit Extensions. Lenders, Issuing Bank and the Administrative Agent shall not be required to include the Existing Letters of Credit as Letters of Credit hereunder until the date on which each of the following conditions has been satisfied:
(a) the Administrative Agent shall have received the following, each dated the date of the initial Loan or as of an earlier date acceptable to the Administrative Agent, in form and substance satisfactory to the Administrative Agent and its counsel:
(i) a Note in favor of each Lender (if requested by such Lender), each duly executed by the Borrower;
(ii) each agreement establishing each lockbox and Dominion Account required by this Agreement and each Deposit Account Control Agreement for each Dominion Account and each Concentration Account that is maintained as of the Closing Date, duly executed by the Borrower and BofA or a financial institution acceptable to the Administrative Agent;
(iii) an initial Borrowing Base Certificate, duly executed on behalf of the Borrower by a Responsible Officer;
(iv) (A) unaudited consolidated Financial Statements of the Borrower for the Fiscal Year ended December 31, 2005, and unaudited consolidated Financial Statements of the Borrower for the three month period ending March 31, 2006, certified by the Borrower pursuant to a certificate executed on its behalf by a Responsible Officer, and (B) a certificate of the Borrower, executed on its behalf by a Responsible Officer, certifying that, from December 31, 2005 until the Closing Date, no change, event, occurrence or development or event involving a prospective change in the business, prospects, operations, results of operations, assets, liabilities or condition (financial or otherwise) of the Borrower has occurred which has had or could reasonably be expected to have a Material Adverse Effect (provided that, for this purpose, no information previously disclosed to the Administrative Agent by the Borrower shall be deemed to indicate that a Material Adverse Effect has occurred or exists prior to Closing Date, and that all information provided by or on behalf of the Borrower to the Administrative Agent hereunder or in connection herewith is true and correct in all material respects;
(v) an opinion of counsel for the Borrower covering such matters incident to the transactions contemplated by this Agreement as the Administrative Agent may reasonably require, which such counsel is hereby requested by the Borrower to provide;
(vi) certified copies of all policies of insurance required by this Agreement and the other Loan Documents, together with loss payee endorsements for all such policies naming the Administrative Agent as lender loss payee with respect to casualty policies, and an additional insured with respect to liability policies;
(vii) copies of the Governing Documents of the Borrower and a copy of the resolutions of the Board of Directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the other Loan Documents to which the Borrower is or is to be a party, and the transactions contemplated hereby and thereby, attached to which is a certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) that such copies of the Governing Documents and resolutions (or similar evidence of authorization) relating to the Borrower are true, complete and accurate copies thereof, have not been amended or modified as of the date of such certificate and are in full force and effect and (B) the incumbency, names and true signatures of the officers of the Borrower authorized to sign the Loan Documents to which it is a party;
(viii) a certified copy of a certificate of the Secretary of State of the state of incorporation of the Borrower, dated within fifteen days of the Closing Date, listing the certificate of incorporation of the Borrower and each amendment thereto on file in such official's ’s office and certifying that (A) such amendments are the only amendments to such certificate of incorporation on file in that office, (B) the Borrower has paid all franchise taxes to the date of such certificate and (C) the Borrower is in good standing in that jurisdiction;
(ix) good standing certificates from the Secretary of State of New York and Georgia, being states in which the Borrower is qualified as a foreign corporation, and from the Secretary of State of Delaware, the jurisdiction of the Borrower's ’s incorporation, each dated within fifteen days of the Closing Date;
(x) the Fee Letter, duly executed by the Borrower;
(xi) the Business Plan for 2006, 2007 and 2008;
(xii) the Licensor Agreement, duly executed by WP IP LLC and the Borrower; and
(xiii) such other agreements, instruments, documents and evidence as the Administrative Agent deems necessary in its reasonable discretion in connection with the transactions contemplated hereby.
(b) Except for the matters referred to on Schedule 6.1(q), there shall be no pending or, to the knowledge of the Borrower, threatened litigation, proceeding, inquiry or other action (i) seeking an injunction or other restraining order, damages or other relief with respect to the transactions contemplated by this Agreement or the other Loan Documents or (ii) which affects or could affect the business, operations, assets, liabilities or condition (financial or otherwise) of the Borrower, except, in the case of clause (ii), where such litigation, proceeding, inquiry or other action could not reasonably be expected to have a Material Adverse Effect.
(c) The Borrower shall have paid (i) all reasonable legal fees of the Administrative Agent in connection with the negotiation, preparation, execution and delivery of the Loan Documents and (ii) the fees payable under the Fee Letter and the expenses payable by the Borrower as provided in the expense reimbursement letter dated April 17, 2006, by the Borrower to BofA, and all other fees referred to in this Agreement that are required to be paid on the Closing Date.
(d) Except for the filing of the financing statements under the UCC necessary to perfect the Lien in the Collateral, no consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person is required to be made by the Borrower in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Notes or the other Loan Documents or the consummation of the transactions contemplated hereby or thereby or the continuing operations of the Borrower following the consummation of such transactions.
(e) The Borrower shall be in compliance with all Requirements of Law and its Material Contracts, other than such noncompliance that could not reasonably be expected to have a Material Adverse Effect.
(f) The Liens in favor of the Administrative Agent relating to the Collateral shall have been duly perfected and shall constitute first priority Liens, and the Collateral shall be free and clear of all Liens other than Liens in favor of the Administrative Agent and Permitted Liens.
(g) After giving effect to all Loans to be made and Letters of Credit to be issued on the Closing Date, the Excess Availability plus the Borrower's ’s cash and Cash Equivalents shall exceed $200,000,000 on the Closing Date. Contemporaneously with the delivery of the executed signature pages to this Agreement by BofA to the Borrower, the conditions set forth in this Section 5.1 shall be and be deemed to be either satisfied or waived.
Appears in 1 contract
Sources: Loan and Security Agreement (American Real Estate Partners L P)