OME » Topics » CONDITIONS PRECEDENT

This excerpt taken from the OME 8-K filed Oct 23, 2009.

CONDITIONS PRECEDENT

Section 7.01 Conditions Precedent to Closing. The closing of the transactions contemplated by this Agreement shall take place on or before October 30, 2009, as the parties shall agree (the “Closing Date”). The obligations of Lender as set forth herein are subject to the

 

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satisfaction (in the opinion of Lender), unless waived in writing by Lender, of each of the following conditions. In the event that Borrowers fail to satisfy any of the conditions precedent to the closing specified below and Lender nevertheless elects to close as an accommodation to Borrowers (there being no obligation or agreement that Lender will do so), such condition(s) shall not be deemed waived and Borrowers shall have the time period(s) specified in the Post-Closing Letter to comply with such condition(s) to the satisfaction of Lender. Borrowers’ failure to satisfy such condition(s) precedent to the satisfaction of Lender within the time period(s) specified in the Post-Closing Letter shall constitute an Event of Default hereunder.

(a) Fees and Expenses. Borrowers shall have paid any and all required fees, and shall have delivered to Lender evidence satisfactory to Lender that Borrowers have paid all other fees, costs and expenses (including the fees and costs of Lender’s counsel) then required to be paid pursuant to this Agreement and all other Loan Documents, including all fees, costs and expenses that Borrowers are required to pay pursuant to any loan application or commitment.

(b) Effectiveness of Loan Documents. Each of the Loan Documents and Lender Swap Documents shall be in full force and effect.

(c) Legal Opinion. There shall have been delivered a favorable opinion of counsel for each Loan Party covering such matters incident to the credit facility hereunder and the Loan Documents as Lender may reasonably request.

(d) Insurance Certificate. Lender shall have received evidence that Borrowers have obtained the policies of insurance specified and required by Section 5.04 hereof.

(e) Documentation and Proceedings. Lender shall have received such evidence as Lender requires as to the existence, good standing, authority and capacity of each Borrower and each entity Guarantor, including an Officer’s Certificate for each Borrower and entity Guarantor.

(f) Notice of Final Agreement. Each Loan Party shall have executed a notice in compliance with the provisions of Section 26.02 of the Texas Business and Commerce Code (the “Notice of Final Agreement”).

(g) Lien Searches. Lender shall have received a certificate or certificates of a reporting service acceptable to Lender reflecting the results of searches made not earlier than ten (10) days prior to the date of this Agreement of the central and local Uniform Commercial Code records and other appropriate records, showing no filings against any of the Collateral for the Obligations or against any Loan Party except as consented to by Lender, and if required by Lender, a certificate or certificates of the appropriate judgment and tax lien records, showing no outstanding judgment or tax liens against any Loan Party.

(h) As to Vessels. Lender shall have received a First Preferred Ship Mortgage, duly executed by each Loan Party that owns an Eligible Vessel, together with U.S. Coast Guard documentation, records and abstracts, including copies of a valid U.S. Coast Guard Certificate of Documentation with a valid fishery endorsement issued with respect to each such Eligible Vessel, demonstrating that each such Eligible Vessel is duly documented with the U.S. Coast Guard and authorized for employment in the U.S. Fisheries Trade and that each such Eligible Vessel is free and clear of all Liens other than Permitted Liens and an Assignment of Insurances

 

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(and such Liens granted to Bank of America, N.A. as Administrative Agent which remain of record but are released as of the Closing Date in connection with the transactions contemplated hereby), duly executed by each Loan Party that owns an Eligible Vessel, relating to the insurances with respect to such Eligible Vessel, each properly executed by the signing Loan Party.

(i) As to Real Property. Lender shall have received fully executed and notarized Mortgages encumbering the fee interest of any Loan Party in each of the real properties designated as a Mortgaged Property on Schedule 4.17, together with:

(i) a survey of the sites of the real property covered by the Mortgages certified to Lender and the title insurance company issuing the policies referred to in Section 7.01(i)(ii) below in a manner reasonably satisfactory to each of Lender and such title insurance company, dated a date reasonably satisfactory to each of Lender and such title insurance company by an independent professional licensed land surveyor, which surveys shall be sufficient to delete any standard printed survey exception contained in the applicable title policy and be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 2005 with all items from Table A thereof completed, except for Nos. 1, 5, 12, 14 and 15;

(ii) ALTA mortgagee title insurance policies issued by a title insurance company reasonably acceptable to Lender with respect to each Mortgaged Property, insuring Lender that each of the Mortgages creates a valid and enforceable first priority mortgage lien on the applicable Mortgaged Property, free and clear of all defects and encumbrances except Permitted Liens, which title insurance policies shall otherwise be in form and substance reasonably satisfactory to Lender and shall include such endorsements as are reasonably requested by Lender;

(iii) evidence as to (a) whether any Mortgaged Property is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a “Flood Hazard Property”) and (b) if any Mortgaged Property is a Flood Hazard Property, (1) whether the community in which such Mortgaged Property is located is participating in the National Flood Insurance Program, (2) the applicable Loan Party’s written acknowledgment of receipt of written notification from Lender (A) as to the fact that such Mortgaged Property is a Flood Hazard Property and (B) as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program, and (3) copies of certificates of insurance of the Loan Parties evidencing flood insurance satisfactory to Lender and naming Lender, as its interest may appear, as first mortgagee/loss payee, and, if requested by Lender, copies of such flood insurance policies and all endorsements thereto;

(iv) copies of any existing environmental site assessment of each Mortgaged Property, and such additional information regarding the status of such Mortgaged Property as Lender may request with results satisfactory to Lender;

(v) evidence satisfactory to Lender: (a) of the identity of all taxing authorities and utility districts (or similar authorities) having jurisdiction over each Mortgaged Property or

 

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any portion thereof; (b) that all taxes, standby fees and any other similar charges have been paid, including copies of receipts or statements marked “paid” by the appropriate authority; and (c) that each Mortgaged Property is a separate tax lot or lots with separate assessment or assessments of the land and the improvements thereon, independent of any other land or improvements and that each Mortgaged Property is a separate legally subdivided parcel (delivery of relevant title insurance policy endorsements acceptable to Lender shall be deemed to satisfy this clause (c)); and

(vi) agreements, in form and substance satisfactory to Lender, executed by each landlord of the premises leased by the Loan Parties and designated in the Post-Closing Letter by which such landlord waives or subordinates all of its rights, if any, to all of the Collateral located at such premises.

(j) As to Aircraft. Lender shall have received an Aircraft Security Agreement, duly executed by each Loan Party that owns any aircraft, together with an aircraft title memorandum as to each aircraft evidencing that such aircraft is free and clear of all Liens other than Permitted Liens.

(k) Regarding Perfection of Liens. Lender shall have received the following: (i) UCC financing statements for each appropriate jurisdiction and FAA filing documents as are necessary, in Lender’s sole discretion, to perfect Lender’s first priority Liens in the Collateral (subject to Permitted Liens); (ii) all certificates evidencing any certificated Equity Interests pledge to Lender pursuant to the Security Agreements, together with duly executed in blank, undated stock powers attached thereto; and (iii) duly executed notices of grant of security interest in the form required by Lender as are necessary, in Lender’s sole discretion, to perfect Lender’s Lien in the United States registered intellectual property of the Loan Parties.

(l) Consents and Authorizations. All consents, authorizations and approvals of, and filings and registrations with, and all other actions in respect of, any Governmental Authority including those required pursuant to 46 C.F.R. § 356.19(b)(2) and (c) or other Person required in connection with the making of the various Loans hereunder, the granting of the security therefor or the conduct of the Loan Parties’ business shall have been obtained and shall be in full force and effect, except for notice required within thirty (30) days of any changes in information with respect to any Loan Party’s officers, directors and stockholders, including five percent (5%) or more stockholders, to the Citizenship Approval Officer of the Maritime Administration of the United States Department of Transportation pursuant to 46 C.F.R. § 356.5(g), and any notice or approval requirements which may apply to the Loan Documents under 46 C.F.R. Part 356.

(m) Financial Statements. Lender shall have received and approved the financial statements of Borrowers and their consolidated Subsidiaries dated as of, and for the period ending, June 30, 2009.

(n) Payoff of Prior Lender. Lender shall have received satisfactory evidence of the amount necessary to pay off all indebtedness of Borrowers under the Existing Credit Agreement to Bank of America, N.A. and the other lenders for which Bank of America, N.A. is Administrative Agent, and the agreement of Bank of America, N.A., upon such payoff, to execute and deliver to Lender an assignment to Lender of all indebtedness of Borrowers under the Existing Credit Agreement to Bank of America, N.A. and the other lenders for which Bank of America, N.A. is Administrative Agent and the Liens securing same pursuant to documents satisfactory in form and substance to Lender.

 

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(o) Lockbox Accounts. Borrowers shall have executed and delivered to Lender irrevocable lockbox agreements for lockbox accounts with Lender in the form provided by or otherwise acceptable to Lender.

(p) Solvency Certificate. Each Borrower shall have executed and delivered to Lender a solvency certificate in form and substance satisfactory to Lender.

(q) No Material Changes. Lender shall have received satisfactory evidence that (i) no change has occurred since June 30, 2009 that could reasonably be expected to have a Material Adverse Effect, or (ii) there is no suit, action, investigation or proceeding pending or threatened in any court or before any arbitrator or Governmental Authority involving any Loan Party that could reasonably be expected to have a Material Adverse Effect.

(r) Representations and Warranties. All representations and warranties contained herein or in the documents referred to herein or otherwise made in writing in connection herewith or therewith shall be true and correct with the same force and effect as though such representations and warranties have been made on and as of this date.

Section 7.02 Conditions Precedent to Loans. The obligation of Lender to make Loans to Borrowers is subject, at the time of the funding of each such Loan (the “Funding Date”), to the satisfaction (in the opinion of Lender), unless waived in writing by Lender, of each of the following conditions:

(a) Borrowing Request. Borrowers shall have delivered to Lender, within the time frame specified in Section 2.01 hereof, a Borrowing Request appropriately completed in compliance herewith.

(b) Availability of Commitment. The then Principal Debt plus the amount of the requested Loan shall be equal to or less than the Commitment.

(c) Expenses. Borrowers shall have paid all expenses of Lender in connection with the making of the Loan.

(d) Representations and Warranties. All representations and warranties contained herein and in the Loan Documents shall be true and correct in all material respects as though such representations and warranties have been made on and as of the Funding Date, except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the Funding Date, such representations and warranties shall continue to be true and correct as of such specified earlier date.

(e) No Default. There shall exist no Event of Default or Potential Default hereunder.

(f) Change in Condition. No change has occurred which has had or could have a Material Adverse Effect.

 

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