Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedent: (a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders: (i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement); (ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note; (iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each Loan Party, in each case, as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; (iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization; (v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request; (vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; (vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; (viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent; (ix) the financial statements referenced in Section 5.05(a) and (b); and (x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require. (b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid. (c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date. (d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Kennedy-Wilson Holdings, Inc.), Credit Agreement (Kennedy-Wilson Holdings, Inc.)
Conditions of Effectiveness. The effectiveness of this Agreement Amendment is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt Agent shall have received (i) from each Borrower and the Administrative Agent a duly executed counterpart of this Agreement signed on behalf of such party and (ii) from each Subsidiary Guarantor a duly executed counterpart of the followingConsent and Reaffirmation attached hereto.
(b) The Administrative Agent shall have received copies, each certified by a Director of which ESCO UK, of its Board of Directors’ resolutions approving this Amendment and ESCO UK’s becoming a Borrower under the Credit Agreement, and such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of ESCO UK.
(c) The Administrative Agent shall be originals or e-mails (in a .pdf format) or telecopies (in each casehave received an incumbency certificate, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer Director of ESCO UK, which shall identify by name and title and bear the signature of the signing officers of ESCO UK authorized to request Borrowings under the Credit Agreement and sign this Amendment and any other Loan PartyDocuments, each dated upon which certificate the Closing Date Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Company or such Subsidiary.
(ord) The Administrative Agent shall have received opinions of U.S. and UK counsel to ESCO UK, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each its counsel, with respect to the laws of the Lenders:
(i) executed counterparts its jurisdiction of this Agreement (it being understood that the Loan Parties agree organization and such other matters as are reasonably requested by counsel to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each Loan Party, in each case, as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each the Lenders.
(e) ESCO UK shall have delivered any promissory notes requested by any Lender, as to such matters concerning the Loan Parties and the Loan Documents as any other instruments and documents reasonably requested by the Administrative Agent may reasonably request;Agent.
(vif) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals Each Lender (other than the resolutions referenced in clause (iiiCommerce Bank) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, confirmed for the Administrative Agent and the Arrangers on or before Company (i) the Closing Date shall have been paidnumber and details of its double taxation treaty passport (“DTTP”) and (ii) that such Lender wishes to use such DTTP for purposes of the Credit Agreement.
(cg) The receipt All documentation and other information required by the Administrative Agent of all necessary information in connection with the PATRIOT Act, bank regulatory authorities under applicable “know your customer” requirementsand anti-money laundering rules and regulations, including the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to USA PATRIOT Act which shall be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel reasonably satisfactory to the Administrative Agent and the Lenders.
(directly h) All legal matters (including with respect to such counselwithholding tax) incident to the extent invoiced at least two Business Days prior making of the Credit Event being made upon the effectiveness of this Amendment, if any, shall be satisfactory to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified Agent and its counsel in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the their commercially reasonable discretion.
(i) The Administrative Agent shall have received notice from such Lender payment of the Administrative Agent’s and its affiliates’ reasonably incurred and properly documented fees and reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses of counsels for the Administrative Agent) in connection with this Amendment and the other Loan Documents, to the extent invoiced prior to the proposed Closing Date specifying its objection theretoexecution of this Amendment. The satisfaction of the conditions precedent above shall be deemed to simultaneously satisfy all of the conditions set out in Section 4.03 for the designation of ESCO UK as a Foreign Subsidiary Borrower.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Esco Technologies Inc)
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of This Amendment shall become effective (such date, the following conditions precedent:
(a“Amendment No. 1 Effective Date”) The Administrative Agent’s receipt of the following, each of which when Agent shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
have received (i) executed counterparts a copy of this Agreement Amendment executed by Agent, Required Lenders, each Loan Party and Personal Guarantor (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally defined below) with one original executed copy of this Agreement);
Amendment to be promptly delivered by Loan Parties to Agent; (ii) a an executed copy of the Amended and Restated Revolving Note Credit Note, dated of even date herewith, in the principal amount of $10,000,000 issued by Borrower to the order of Flushing Bank, with one original executed copy to be promptly delivered by the Borrower(s) in favor of each Lender requesting a Note;
Borrower to Agent; (iii) such certificates an executed copy of resolutions the Second Amended and Restated Fee Letter, dated of even date herewith, with one original executed copy to be promptly delivered by Borrower to Agent; and (iv) a certificate of the Secretary (or other action and incumbency certificates of Responsible Officers Assistant Secretary) of each Loan Party, dated on or around the Amendment No. 1 Effective Date, in each caseform and substance acceptable to Agent, certifying as to (a) the Administrative Agent may require evidencing incumbency and signature of the identity, authority and capacity officers (or other representatives) of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with Loan Party executing this Agreement and Amendment, (b) the authorizations by the board of directors (or other Loan Documents to which governing body) of such Loan Party is a party;
(iv) to such documents officers or other representatives to enter into and certifications carry out such transactions as are contemplated pursuant to this Amendment; and including therewith copies of the Administrative Agent may reasonably require to evidence that Organic Documents of such Loan Party as in effect on the Amendment No. 1 Effective Date and good standing certificates for each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
dated not more than thirty (v30) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Amendment No. 1 Effective Date.
(d) Unless waived , issued by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements secretary of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document state or other matter required thereunder to be consented to appropriate official of each Loan Party’s jurisdiction of organization and each jurisdiction where the conduct of each Loan Party’s business activities or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying ownership of its objection theretoproperties necessitates qualification.
Appears in 2 contracts
Samples: Credit and Security Agreement, Credit and Security Agreement (Manhattan Bridge Capital, Inc)
Conditions of Effectiveness. The effectiveness of this Agreement Amendment is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt Agent shall have received counterparts of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) this Amendment duly executed counterparts of this Agreement (it being understood that by the Loan Parties agree to deliver after Borrower, the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
Required Lenders and the Administrative Agent, (ii) a Revolving Note the Consent and Reaffirmation attached hereto duly executed by the Borrower(s) in favor of each Lender requesting a Note;
Subsidiary Guarantors and (iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each Loan Party, in each case, as the Administrative Agent may require evidencing Pledge Agreement duly executed by the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the applicable Loan Parties and the Loan Documents as the Administrative Agent.
(b) The Administrative Agent may reasonably request;
(vi) shall have received a certificate of the Secretary or an Assistant Secretary of each Loan Party (i) certifying (w) that there have been no changes in the Certificate of Incorporation or other charter document of such Loan Party, as attached thereto and as certified as of a Responsible Officer recent date by the Secretary of State (or analogous governmental entity) of the Parent Borrower either jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (Ax) that there have been no changes to the By-Laws or other applicable organizational document of such Loan Party since August 30, 2017, or that if there have been changes thereto since such date, attaching copies thereto the current version thereof as in effect on the date of all consentssuch certification, licenses and approvals (y) resolutions of the Board of Directors or other than the resolutions referenced in clause (iii) above) required in connection with governing body of such Loan Party authorizing the execution, delivery and performance by such of this Amendment and each Loan Document (as amended hereby) to which it is a party, and (z) the names and true signatures of the incumbent officers of each Loan Party and the validity against such Loan Party of authorized to sign the Loan Documents to which it is a party, and such consents, licenses and approvals shall be (in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer the case of the Parent Borrower certifying (ABorrower) that authorized to request a Borrowing or the conditions specified in Sections 4.02(a) issuance of a Letter of Credit under the Amended Credit Agreement and (bii) have been satisfied, attaching a Good Standing Certificate (Bor analogous documentation if applicable) that there has been no event for such Loan Party from the Secretary of State (or circumstance since the date analogous governmental entity) of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending orjurisdiction of its organization, to the knowledge of any Loan Party, threatened extent generally available in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paidjurisdiction.
(c) The receipt by Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated as of all necessary information in connection with the PATRIOT Actdate hereof) of (i) Xxxxx Lovells US LLP, “know your customer” requirementsspecial New York and Delaware counsel to the Loan Parties and (ii) internal counsel to the Loan Parties as to certain corporate capacity and authorization matters and non-New York, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), non-federal and other customary requirementsnon-Delaware law matters, in each case in form and substance reasonably satisfactory to be delivered by the Administrative Agent and covering such matters relating to the Loan Parties not later than five Business Days prior Parties, the Loan Documents, this Amendment and the transactions contemplated hereby as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsels to the Closing Date to the extent deliver such information is requested not later than ten Business Days prior to the Closing Dateopinions.
(d) Unless waived The Administrative Agent shall have received:
(i) the results of a recent lien search in the jurisdiction of organization of each Loan Party and each other jurisdiction required by the Administrative Agent, and such searches shall reveal no Liens on any of the Parent Equity Interests owned by the Loan Parties except for liens discharged on or prior to the date hereof pursuant to a pay-off letter or other documentation reasonably satisfactory to the Administrative Agent;
(ii) the certificates representing the Equity Interests pledged pursuant to the Pledge Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof in each case, to the extent required to be delivered pursuant to the Pledge Agreement; and
(iii) each document (including any Uniform Commercial Code financing statements) required by the Collateral Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, which shall be in proper form for filing, registration or recordation.
(e) To the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, any Lender that has requested, in a written notice to the Borrower at least five (5) days prior to the date hereof, a Beneficial Ownership Certification in relation to the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to received such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings Beneficial Ownership Certification (provided that that, upon the execution and delivery by such estimate shall not thereafter preclude a final settling Lender of accounts between its signature page to this Amendment, the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified condition set forth in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.clause
Appears in 2 contracts
Samples: Credit Agreement (Papa Johns International Inc), Credit Agreement (Papa Johns International Inc)
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals original, or e-mails mail (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that and the Loan Parties agree to deliver after the Closing Date originals sufficient Guaranty Agreement, in such number for distribution to each Lender requesting an originally executed copy of this Agreement)as reasonably requested by Administrative Agent;
(ii) a Revolving Credit Note and/or Term Note, as applicable, executed by the Borrower(s) Borrower in favor of each Lender requesting such Note (which, to the extent delivered via e-mail (in a Note.pdf format) or telecopies, shall be followed promptly by originals);
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and each Loan Party is validly existing and existing, in good standing and qualified to engage in business in (A) its jurisdiction of organizationorganization and (B) each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx & Xxxxxxx Procter LLP, counsel to the Loan Parties, addressed to the Administrative Agent, each Lender and each L/C Issuer, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a favorable opinion of Xxxxxxx LLP, local counsel to the Loan Parties in Maryland, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vivii) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such each Loan Party Party, and the validity against such each Loan Party Party, of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiviii) a certificate signed by a Responsible Officer of the Parent Borrower certifying that (A1) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1A) relates to challenges the validity or enforceability of this Agreement or Agreement, any other Loan Document, Document or any of the transactions contemplated hereby or thereby, or otherwise purports to restrict or prohibit the performance of all or any portion of this Agreement, any other Loan Document or any of the transactions contemplated hereby or thereby or (B) could reasonably be expected to have a Material Adverse Effect and (2) since the date of the Audited Financial Statements, there has not occurred any event or condition that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viiiix) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of from the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties Parent and their Subsidiaries, taken as a whole and its Subsidiaries on a consolidated basis, basis are Solvent;
(ixx) the financial statements referenced in Section Sections 5.05(a) and (b);
(xi) all Indebtedness under or in connection with the term loan agreement dated as of August 24, 2015 by and among Borrower, Xxxxx Fargo Bank, as administrative agent and certain other parties thereto (including without limitation all unpaid principal, interest, fees, expenses and other amounts owing thereunder or in connection therewith) shall have been repaid in full or otherwise disposed of in a manner acceptable to the Administrative Agent, all commitments therefor shall have been terminated and all Liens securing, or otherwise arising under or in connection with, such term loan agreement shall have been released and terminated;
(xii) the Administrative Agent shall have received payment of all interest and fees that have accrued through and including the Closing Date with respect to outstanding loans made, and letters of credit issued, pursuant to under the Existing Credit Agreement; and
(xxiii) such other assurancesa certificate, certificates, documents, consents substantially in the form of Exhibit E or opinions as otherwise satisfactory to the Administrative Agent, signed by a Responsible Officer of the L/C Issuers Parent and evidencing that, giving pro forma effect as of June 30, 2017 to the transactions to occur on or about the Required Lenders Closing Date (including, all Credit Extensions to occur on the Closing Date and the use of proceeds thereof), as of the date of the Closing Date, the Loan Parties are in pro forma compliance with the financial covenants contained in Section 7.11, setting forth a calculation of the ratio of Total Indebtedness to Total Asset Value as of the last day of the fiscal quarter ending June 30, 2017, and including a schedule of Unencumbered Eligible Properties, all in form and detail reasonably may requiresatisfactory to the Administrative Agent (such certificate, the “Pro Forma Restatement Effective Date Compliance Certificate”).
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
At least ten (c10) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date, the Administrative Agent and each Lender shall have received all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
(c) All fees required hereunder or under the Fee Letters to be paid on or before the Closing Date to the Administrative Agent, the Arrangers and the Lenders shall have been paid.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced at least two Business Days (which invoice may be in summary form) prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Empire State Realty OP, L.P.), Credit Agreement (Empire State Realty OP, L.P.)
Conditions of Effectiveness. The effectiveness of this Agreement on the Effective Date is subject to the satisfaction or waiver of each of the following conditions precedent:precedent (it being understood that the obligations of the L/C Issuer and the Lenders to make Credit Extensions hereunder shall be subject to satisfaction of the conditions in Sections 4.02 and 4.03):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails facsimiles (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals Agreement, sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and the Borrower;
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organization;
(v) a favorable opinion properties or the conduct of Xxxxxx & Xxxxxxx LLPits business requires such qualification, counsel except to the Loan Parties, addressed extent that failure to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are do so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could not reasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect;
(viiiiv) a Solvency Certificate signed by the chief financial officer or the chief accounting officer evidence of the Parent Borrower certifying that, after giving effect Borrower’s declaration a special one time dividend payable to the transactions its common shareholders in an aggregate amount not to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b)exceed $2,500,000,000; and
(xv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, Agent or the L/C Issuers or the Required Lenders Issuer reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Health Management Associates Inc), Credit Agreement (Health Management Associates Inc)
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails electronic copies (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer duly authorized officer of the applicable signing Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement (it being understood that executed by the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and each Loan Party;
(ii) a Revolving each Note executed by the Borrower(s) Borrowers in favor of each Lender requesting a NoteNote or Notes;
(iii) the Security Agreement executed by each Loan Party;
(iv) the Term Loan Intercreditor Agreement executed by the Borrowers and the Term Loan Agent;
(v) the Fee Letter executed by the Company and the Administrative Agent;
(vi) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers duly authorized officers of each Loan PartyParty and each Restricted Subsidiary party to a Loan Document, in each case, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and officer of each Loan Party or Restricted Subsidiary executing the other Loan Documents to which such each Loan Party or Restricted Subsidiary is a party;
(ivvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(vviii) a favorable the executed opinion of Xxxxxx Hunton & Xxxxxxx Xxxxxxxx LLP, counsel to the Company and special New York counsel to the other Loan Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, as in form and substance reasonably acceptable to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestand Collateral Agent;
(viix) a certificate of a Responsible Officer of (i) unaudited consolidated financial statements for the Parent Borrower either quarter ending September 30, 2016 prepared in accordance with GAAP and (Aii) attaching copies of all consents, licenses and approvals financial projections (other than including the resolutions referenced in clause (iiiassumption on which such projections are based) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredfor fiscal years 2017 through 2021;
(viix) a certificate signed by a Responsible Officer of the Parent Borrower Company certifying (A) that the conditions specified in Sections 4.01(c) and Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance not occurred since December 31, 2016, any Material Adverse Effect;
(xi) a solvency certificate from the date chief financial officer of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or Company in the aggregateform of Exhibit L, which demonstrates that the Company and its Restricted Subsidiaries on a consolidated basis, are, and after giving effect to the Transactions and the other transactions contemplated hereby, will be, Solvent
(xii) copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment Lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, Lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Material Real Property of any Loan Party is located and the state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that the Administrative Agent deems reasonably necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Security Agreements (other than Permitted Liens);
(xiii) the Collateral Questionnaire, executed by each Loan Party; and
(xiv) a Borrowing Base Certificate covering the Borrowing Base as of the Closing Date, with customary supporting documentation.
(b) (i) Any fees required to be paid on or before the Closing Date to the Administrative Agent, the Arrangers or the Lenders pursuant to the Fee Letter shall have been paid and (ii) any costs and expenses required to be paid on or before the Closing Date to the Administrative Agent, the Arrangers or the Lenders to the extent invoices have been received by the Company at least two Business Days prior to the Closing Date (or such later date as reasonably agreed by the Company) shall have been paid.
(c) The Company and its Restricted Subsidiaries shall have complied in all material respects with all state and federal regulations regarding financial assurance requirements (including but not limited to reclamation bonding requirements).
(d) The Administrative Agent shall have received a certificate from the applicable Loan Party’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 6.07 is in full force and effect, together with endorsements naming Collateral Agent, for the benefit of Secured Parties, as additional insured and lender’s loss payee thereunder to the extent required under Section 6.07.
(e) In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a Material Adverse Effect valid, perfected First Priority security interest in the Collateral (subject to the limitations set forth in the Collateral Documents), each Loan Party shall have delivered to Collateral Agent:
(i) executed counterparts of the Security Agreement;
(ii) evidence reasonably satisfactory to Administrative Agent of the compliance by each Loan Party of their obligations under the Security Agreement and the other Collateral Documents (Cincluding their obligations to execute or authorize, as applicable, and deliver UCC financing statements (including, without limitation, as-extracted financing statements), originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein);
(iii) fully executed IP Security Agreements, in proper form for filing or recording in the United States Patent and Trademark Office and the United States Copyright Office, as applicable, memorializing and recording the encumbrance of the Intellectual Property listed in Schedule 6 to the Security Agreement; and
(iv) evidence that no each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including any other intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by the Administrative Agent.
(f) There shall not exist any action, suit, investigation investigation, litigation, proceeding or proceeding is hearing, pending or, to the knowledge of any Loan Party, or threatened in writing in any court or before any arbitrator or Governmental Authority that (1) relates impairs the ability of the Loan Parties to this Agreement consummate the Transactions and no preliminary or any other Loan Documentpermanent injunction or order by a state or federal court shall have been entered, in each case that would be material and adverse to the Arrangers, the Agents or any of the Lenders. All Governmental Authorities and Persons shall have approved or consented to the transactions contemplated hereby or therebyhereby, or (2) could reasonably to the extent required, and such approvals shall be expected to have, either individually or in the aggregate, a Material Adverse Effect;full force and effect.
(viiig) a Solvency Certificate signed by The Arrangers and the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect Agents shall have received at least three business days prior to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions documentation and other information required by the Arrangers’ and the Agents’ regulatory authorities with respect to occur on the Closing Date), Company and the other Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, under applicable “know your customer” requirementsand anti-money laundering rules and regulations, including without limitation the Beneficial Ownership Regulation (including a Beneficial Ownership CertificationPATRIOT Act, if requested), and other customary requirements, in each case to be delivered that has been requested by the Loan Parties not later than five Business Days prior to Arrangers or the Closing Date to the extent such information is requested not later than Agents at least ten Business Days prior to the Closing Date.
(dh) Unless waived by On the Administrative AgentClosing Date, neither the Parent Borrower Company nor any of its Subsidiaries shall have paid all feesany material Indebtedness other than Indebtedness permitted pursuant to Section 7.03.
(i) Since December 16, charges and disbursements of counsel 2016, no Material Adverse Effect shall have occurred.
(j) The Administrative Agent shall have received any promissory note required to be pledged to the Administrative Agent pursuant to the Security Agreement endorsed (directly without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.
(k) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document shall be true and correct in all material respects (or, if such representation or warranty is subject to such counsela materiality or Material Adverse Effect qualification, in all respects) on and as of the date hereof, except to the extent invoiced at least two Business Days prior that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in the text thereof.
(l) No Default or Event of Default shall have occurred and be continuing, or would result, from any Credit Extension or from the application of the proceeds thereof on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for For purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder under any Loan Document to be consented to or approved by or acceptable or satisfactory to a Lender such Lender, unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Asset Based Revolving Credit Agreement (Contura Energy, Inc.), Asset Based Revolving Credit Agreement (Contura Energy, Inc.)
Conditions of Effectiveness. The effectiveness This Agreement shall become effective on and as of this Agreement is subject to satisfaction or waiver of the first date on which the following conditions precedentprecedent have been satisfied:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer Officer, secretary or assistant secretary of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent Agent, the Arrangers and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals Agreement, sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and the Company;
(ii) a Revolving Note Notes executed by the Borrower(s) Borrowers in favor of each Lender requesting a NoteNotes;
(iii) (A) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers Officers, secretaries or assistant secretaries of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a partyparty and (B) a copy of a Certificate of the Secretary of State (or comparable office) of the jurisdiction of incorporation of each Loan Party certifying (1) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office, (2) that such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office and (3) that such Loan Party is validly existing, in good standing and qualified to engage in business in such jurisdiction;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of (i) Xxxxxx & Xxxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, special counsel to the Loan PartiesParties and (ii) Xxxxxx Attorneys Ltd., Finnish counsel to the Finnish Borrower, in each case, addressed to the Administrative Agent and each Lender, as to such the matters and concerning the Loan Parties and the Loan Documents as Documents, in form and substance reasonably acceptable to the Administrative Agent may reasonably requestAgent;
(vi) a certificate of a Responsible Officer Officer, secretary or assistant secretary of the Parent Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower Company, the statements in which shall be true certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;current Debt Ratings; and
(viii) a Solvency Certificate signed by evidence that the chief financial officer Existing Credit Agreement has been or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on concurrently with the Closing Date (includingis being terminated and all Liens, without limitationif any, all securing obligations under the Existing Credit Extensions to occur on Agreement have been or concurrently with the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, Date are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may requirebeing released.
(b) Any fees required to be paid to the Lenders, the Administrative any Agent and the Arrangers or Lender on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower Company shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Perkinelmer Inc), Credit Agreement (Perkinelmer Inc)
Conditions of Effectiveness. The effectiveness of this Agreement and the obligation of each Term Lender to make its Term Loan hereunder is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, or e-mails mail (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, the Borrower’s Instruction Certificate and the Borrower Remittance Instructions, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals Agreement, sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and the Borrower;
(ii) a Revolving Credit Note executed by the Borrower(s) Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note and a Term Note executed by the Borrower in favor of each Term Lender requesting a Term Note;
(iii) a duly completed Borrower’s Instruction Certificate executed by a Responsible Officer of the Borrower, together with such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in (A) its jurisdiction of organizationorganization and (B) each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, opinions addressed and reasonably satisfactory to the Administrative Agent Agent, the Issuing Banks and each Lenderthe Lenders, from counsel reasonably acceptable to the Administrative Agent, as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and Effect, (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, have a Material Adverse EffectEffect and (D) a calculation of the ratio of Total Indebtedness to Total Asset Value as of the last day of the fiscal quarter of the REIT ended September 30, 2017;
(viii) a Solvency Certificate signed by from the chief financial officer or the chief accounting officer of the Parent Borrower REIT certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the each Loan Parties Party is, individually and their Subsidiaries, taken as a whole and together with its Subsidiaries on a consolidated basis, are Solvent;
(ix) a duly completed compliance certificate, giving pro forma effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date);
(x) duly completed Borrower Remittance Instructions signed by a Responsible Officer of the Borrower;
(xi) the financial statements referenced in Section 5.05(a) and (b);
(xii) evidence that each of the Existing BANA Credit Agreement, the Existing PNC Credit Agreement and the Existing WFB Credit Agreement and all documents entered into in connection with each such agreement, shall have been terminated in full (except to the extent that provisions of any such document by its express terms survives termination thereof) and all unpaid principal, interest, fees, expenses and other amounts owing thereunder or in connection therewith (other than any contingent obligation not yet due and payable) shall have been paid in full and all commitments thereunder shall have been terminated, or concurrently with the Closing Date is being, terminated and paid in full; and
(xxiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the any L/C Issuers Issuer, the Swing Line Lender, the Required Lenders or the Required Term Lenders reasonably may require.
(b) Any fees required hereunder or under the Fee Letters to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by Completion of all due diligence with respect to the REIT, the Borrower, and their respective Subsidiaries and properties in scope and determination satisfactory to the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirementsAgent, the Beneficial Ownership Regulation (including a Beneficial Ownership CertificationBookrunner, if requested), the Arrangers and other customary requirements, the Lenders in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Datetheir sole discretion.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced at least two Business Days (which invoice may be in summary form) prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(e) At least ten Business Days prior to the Closing Date, the Administrative Agent and each Lender shall have received documentation and other information with respect to each of the Loan Parties that is required, in the Administrative Agent’s or such Lender’s judgment, by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) and regulations implemented by the US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Acadia Realty Trust), Credit Agreement (Acadia Realty Trust)
Conditions of Effectiveness. The effectiveness of the amendment and restatement of the Replaced Credit Agreement by this Agreement is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) fully executed counterparts of this Agreement (it being understood that and the Loan Parties agree to deliver after the Closing Date originals Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and the Borrower;
(ii) a Revolving Note executed by Disbursement Instruction Agreement effective as of the Borrower(s) in favor of each Lender requesting a NoteClosing Date;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Parties is validly existing and existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Borrower (on behalf of each of the Loan Parties), addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower each Loan Party either (A) attaching copies of all applicable consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified each Consolidated Party is in Sections 4.02(a) and (b) have been satisfiedcompliance in all material respects with all existing contractual financial obligations, (B) all governmental, shareholder and third party consents and approvals necessary for the Loan Parties to enter into the Loan Documents and fully perform thereunder, if any, have been obtained, (C) immediately after giving effect to this Agreement, the other Loan Documents and all the transactions contemplated therein to occur on such date, (1) each of the Loan Parties is solvent, (2) no Default or Event of Default exists, (3) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects (or, to the extent qualified by materiality or Material Adverse Effect, in all respects) except (x) to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations were true and correct as of such earlier date, and (y) for purposes of the representations and warranties set forth in Section 5.13, to the extent of changes resulting from transactions and other events contemplated or not prohibited by this Agreement or the other Loan Documents and changes occurring in the ordinary course of Borrower’s business, and (4) the Loan Parties are in compliance with each of the financial covenants set forth in Section 7.11 (and including detailed calculations of each such financial covenant); (D) that, to such Responsible Officer’s knowledge, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect Effect; and (CE) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effectcurrent Debt Ratings;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect evidence that all insurance required to be maintained pursuant to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties Documents has been obtained and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced is in Section 5.05(a) and (b)effect; and
(xix) such other assurances, certificates, documents, documents or consents or opinions as the Administrative Agent, the L/C Issuers Agent or the Required Lenders reasonably may require.
(b) There shall not have occurred a material adverse change since December 31, 2017, in the operations, business, properties, liabilities (actual or contingent), or financial condition of the Borrower and the other Consolidated Parties taken as a whole, as reasonably determined by the Administrative Agent.
(c) There shall not exist any action, suit, investigation, or proceeding pending or threatened, in any court or before any arbitrator or governmental authority that could have a Material Adverse Effect, as reasonably determined by the Administrative Agent.
(d) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(de) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(f) The Borrower and each other Loan Party shall have provided all information reasonably requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act.
(g) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to each such Loan Party or such Subsidiary, in each case, at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Term Loan Agreement (Tanger Properties LTD Partnership /Nc/), Term Loan Agreement (Tanger Properties LTD Partnership /Nc/)
Conditions of Effectiveness. The effectiveness This Amendment shall be deemed effective as of this Agreement is subject the first date (such date being referred to satisfaction or waiver herein as the “Third Amendment Effective Date”) on which all of the following conditions precedentprecedent have been satisfied or waived in writing:
(a) The the Administrative Agent’s receipt of the following, in such number as reasonably requested by the Administrative Agent,, each of which shall be originals original, or e-mails mail (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Third Amendment Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders constituting the Required Lenders:
(i) executed counterparts of this Agreement (it being understood that Amendment from each of the Loan Parties agree to deliver after Parties, the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement)Administrative Agent and the Lenders constituting the Required Lenders;
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and each Loan Party is validly existing and existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(viv) a favorable customary opinion of Xxxxxx Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxxxxx Xxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender;
(v) a favorable customary opinion of Xxxxxxx LLP, as local counsel to such matters concerning the Loan Parties and the Loan Documents as in Maryland, addressed to the Administrative Agent may reasonably requestand each Lender;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying that (A1) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1A) relates to challenges the validity or enforceability of this Agreement or Amendment, the Existing Credit Agreement, the Amended Credit Agreement, any other Loan Document, Document or any of the transactions contemplated hereby or thereby, or otherwise purports to restrict or prohibit the performance of all or any portion of this Amendment, the Existing Credit Agreement, the Amended Credit Agreement, any other Loan Document or any of the transactions contemplated hereby or thereby or (B) could reasonably be expected to have a Material Adverse Effect and (2) since December 31, 2023, there has not occurred any event or condition that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viiivii) a Solvency Certificate certificate, substantially in the form of Exhibit E to the Amended Credit Agreement or otherwise satisfactory to the Administrative Agent, signed by the chief financial officer or the chief accounting officer a Responsible Officer of the Parent Borrower certifying and evidencing that, after giving pro forma effect as of December 31, 2023 to the transactions to occur on or about the Closing Date (includingThird Amendment Effective Date, without limitation, all Credit Extensions to occur on as of the Closing date of the Third Amendment Effective Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) in pro forma compliance with the financial statements referenced covenants contained in Section 5.05(a) 7.11 of the Amended Credit Agreement, setting forth a calculation of the ratio of Total Indebtedness to Total Asset Value as of the last day of the fiscal quarter ending December 31, 2023, and (b)including a schedule of Unencumbered Eligible Properties, all in form and detail reasonably satisfactory to the Administrative Agent; and
(xviii) an executed joinder agreement to the Guaranty from each Direct Owner and Indirect Owner of each Unencumbered Property listed on Schedule 1 included in Annex II that is not already party to the Guaranty Agreement, including, for the avoidance of doubt, Williamsburg 000-000 Xxxxx Xxxxxx, X.X.X., Xxxxxxxxxxxx 000 Xxxxx Xxxxxx, X.X.X. and ESRT 000 Xxxxxxxx, X.X.X., together with the items referenced in Sections 4.01(a)(iii) and (iv) of the Amended Credit Agreement with respect to each such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may requireDirect Owner and Indirect Owner.
(b) Any fees required to be paid At least five (5) Business Days prior to the LendersThird Amendment Effective Date, the Administrative Agent and the Arrangers on or before the Closing Date each Lender shall have been paid.
(c) The receipt by received all documentation and other information that the Administrative Agent of all necessary information or such Lender requests in connection order to comply with the PATRIOT Act, its ongoing obligations under applicable “know your customer” requirementsand anti-money laundering rules and regulations, including the PATRIOT Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), ) and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date case, to the extent such information is requested not later than in writing at least ten (10) Business Days prior to the Closing Third Amendment Effective Date.
(dc) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced at least two three (3) Business Days prior to or on the Closing DateThird Amendment Effective Date (which invoice may be in summary form), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.039.03 of the Amended Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4.01, 3 each Lender that has signed this Agreement Amendment shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoLender.
Appears in 2 contracts
Samples: Credit Agreement (Empire State Realty Trust, Inc.), Credit Agreement (Empire State Realty OP, L.P.)
Conditions of Effectiveness. The effectiveness This Third Amended and Restated Credit Agreement shall become effective on and as of this Agreement is subject to satisfaction or waiver the first date (the “Restatement Effective Date”) on which all of the following conditions precedentprecedent shall have been satisfied or waived in accordance with Section 11.01:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, .pdf copies sent via electronic mail or e-mails telecopied (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals Agreement, sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and the Borrowers;
(ii) a Revolving Note executed by the Borrower(s) Borrower in favor of each Lender requesting a Note;
(iii) a Borrowing Base Certificate, as of the Restatement Effective Date;
(iv) a certificate of each Loan Party dated as of the proposed Restatement Effective Date signed by a Responsible Officer of such Loan Party certifying that, on the Restatement Effective Date before and after giving effect to the effectiveness of this Agreement, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of such date, except (x) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date and (y) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such date after giving effect to such qualification, and (B) no Default exists; and
(v) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(ivvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in its jurisdiction of organizationorganization or formation;
(vvii) a favorable opinion of Xxxxxx & Xxxxxxx Sidley Austin LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viviii) a favorable opinion of Xxxxxxxx & Xxxxxxxx LLP, Maryland counsel to the Parent, addressed to the Administrative Agent and each Lender, as to such matters concerning the Parent and the Loan Documents to which the Parent is a party as the Administrative Agent may reasonably request;
(ix) a certificate of a Responsible Officer of the Parent Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viix) certified copies of UCC, tax and judgment lien searches, or equivalent reports or searches, each of a certificate signed recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party (other than Parent) as debtor and that are filed in those state and county jurisdictions in which any Loan Party (other than Parent) is organized or maintains its principal place of business and such other searches, if any, that the Administrative Agent reasonably deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Liens permitted to exist pursuant to the terms hereof);
(xi) [intentionally omitted];
(xii) [intentionally omitted];
(xiii) the Administrative Agent shall have received such other agreements and documents, and evidence that all other actions, recordings and filings have been taken, in each case that the Administrative Agent may reasonably deem necessary or desirable in order to create or perfect the Liens created under the Collateral Documents (including all actions the delivery of the certificates representing any Equity Interests in any Person that have been pledged pursuant to the Pledge Agreement (together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a Responsible Officer duly authorized officer of the Parent Borrower certifying holder(s) of such Equity Interests);
(Axiv) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date absence of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no any action, suit, investigation or proceeding is proceeding, pending oror threatened, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates purports to this Agreement materially affect any of the Borrowers, the Guarantors or any other Loan Documentof their respective Subsidiaries, or any transaction contemplated hereby, or that could have a material adverse effect on any of the Borrowers or the Guarantors, or any of the transactions their respective Subsidiaries, or any transaction contemplated hereby or thereby, on the ability of any of the Borrowers or (2) could reasonably be expected the Guarantors to have, either individually or in perform its obligations under the aggregate, a Material Adverse Effect;Loan Documents; and
(viiixv) a Solvency Certificate signed by from the chief financial officer or Loan Parties demonstrating that each Loan Party is Solvent.
(b) At least five (5) Business Days prior to the chief accounting officer Restatement Effective Date, the Administrative Agent and each Lender, as applicable, shall have received documentation and other information with respect to each of the Parent Borrower certifying thatLoan Parties which is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing DateUSA Patriot Act (Title III of Pub. L. 107 56 (signed into law October 26, 2001), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as regulations implemented by the US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act reasonably requested by the Administrative Agent, Agent or such Lender at least ten (10) Business Days prior to the L/C Issuers or the Required Lenders reasonably may requireRestatement Effective Date.
(bc) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Restatement Effective Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced at least two Business Days prior to or on the Closing Restatement Effective Date, plus such additional amounts of such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, 4.01 each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Restatement Effective Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Starwood Property Trust, Inc.), Credit Agreement (Starwood Property Trust, Inc.)
Conditions of Effectiveness. The effectiveness of this Agreement and the obligation of each Lender to make its Term Loan hereunder is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, or e-mails mail (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing DateDate and, in the case of the Borrower’s Instruction Certificate and the Borrower Remittance Instructions, a date before the Closing Date acceptable to the Administrative Agent) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals Agreement, sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and the Borrower;
(ii) a Revolving Term Note executed by the Borrower(s) Borrower in favor of each Lender requesting a Term Note;
(iii) a duly completed Borrower’s Instruction Certificate executed by a Responsible Officer of the Borrower, together with such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that 60 each Loan Party is validly existing and existing, in good standing and qualified to engage in business in (A) its jurisdiction of organizationorganization and (B) each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, opinions addressed and reasonably satisfactory to the Administrative Agent and each Lenderthe Lenders, from counsel reasonably acceptable to the Administrative Agent, as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2021 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and Effect, (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, have a Material Adverse EffectEffect and (D) a calculation of the ratio of Total Indebtedness to Total Asset Value as of the last day of the fiscal year of the REIT ended December 31, 2021;
(viii) a Solvency Certificate signed by from the chief financial officer or the chief accounting officer of the Parent Borrower REIT certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the each Loan Parties Party is, individually and their Subsidiaries, taken as a whole and together with its Subsidiaries on a consolidated basis, are Solvent;
(ix) a duly completed compliance certificate, giving pro forma effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date);
(x) duly completed Borrower Remittance Instructions signed by a Responsible Officer of the Borrower;
(xi) the financial statements referenced in Section 5.05(a) and (b); and;
(xxii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required hereunder or under the Fee Letter to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.. 61
(c) The receipt by Completion of all due diligence with respect to the REIT, the Borrower, and their respective Subsidiaries and properties in scope and determination satisfactory to the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirementsAgent, the Beneficial Ownership Regulation (including a Beneficial Ownership CertificationBookrunner, if requested), the Arranger and other customary requirements, the Lenders in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Datetheir sole discretion.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced at least two Business Days (which invoice may be in summary form) prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(e) At least ten Business Days prior to the Closing Date, the Administrative Agent and each Lender shall have received documentation and other information with respect to each of the Loan Parties that is required, in the Administrative Agent’s or such Lender’s judgment, by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification) and regulations implemented by the US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of This Amendment shall become effective on the date on which the following conditions precedent:have been satisfied (the “Effective Date”):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) electronic copies unless otherwise specified, each properly executed by a Responsible Officer duly authorized officer of the signing Loan Party, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts a Borrowing Notice with respect to the extensions of this credit contemplated by Section 2 above delivered in accordance with the requirements of Section 2.02(a) of the Credit Agreement (it being understood that including without limitation the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy timing of this Agreementnotice requirements contemplated thereby);
(ii) a Revolving Note executed counterparts of this Amendment executed by each of the Borrower(s) in favor of Incremental Lenders, the Borrower, each Lender requesting a Noteother Loan Party and the Administrative Agent;
(iii) such certificates certified copies of the resolutions of the board of directors or equivalent governing body of each Loan Party approving this Amendment and the transactions contemplated hereby and ratifying each of the Loan Documents after giving effect to this Amendment and of all other documents evidencing other necessary corporate action and incumbency certificates governmental and other third party approvals and consents, if any, with respect to this Amendment and the transactions contemplated hereby;
(iv) a copy of Responsible Officers the certificate of the Secretary of State of the jurisdiction of incorporation or formation, as the case may be, of each Loan Party, dated a recent date before the Effective Date, certifying (A) as to a true and correct copy of the charter, article of formation, or such other constitutive document on file in each case, as such Secretary’s office and (B) that (1) such Loan Party has paid all franchise taxes to the Administrative Agent may require evidencing the identity, authority date of such certificate and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which (2) such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized incorporated or formed, and is validly existing formed and in good standing in its or presently subsisting under the laws of the State of the jurisdiction of organizationincorporation or formation;
(v) a favorable certificate of each Loan Party signed on behalf of such Loan Party by its President or a Vice President and its Secretary, any Assistant Secretary or a duly authorized person, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter or applicable constitutive documents of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3 (a)(iii) above, (B) a true and correct copy of the bylaws, limited liability company agreement, or partnership agreement of such Loan Party as in effect on the date on which the resolutions referred to in Section 3(a)(iii) above were adopted and on the Effective Date and (C) the due incorporation or formation and good standing or valid existence of such Loan Party as a corporation, limited liability company or partnership organized or formed under the laws of the jurisdiction of its incorporation or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party;
(vi) a certificate of the Secretary, an Assistant Secretary or a duly authorized person of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Amendment;
(vii) a certificate signed by a Responsible Officer, or a duly authorized person, of the Borrower certifying as to the matters set forth in Section 3(e) below;
(viii) certificates attesting to the Solvency of the Borrower and its Subsidiaries on a consolidated basis before and after giving effect to this Amendment and the transactions contemplated hereby, from its chief financial officer.
(ix) Notes executed by the Borrower in favor of each Incremental Lender that has requested Notes at least two Business Days prior to the Effective Date;
(x) the executed opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special New York counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, substantially as to such the matters concerning set forth in the Loan Parties and opinion delivered pursuant to the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer terms of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b)Amendment; and
(xxi) with respect to each improved real property currently encumbered by a Mortgage, a “Life-of-Loan” Federal Emergency Standard Flood Hazard Determination (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto), and if such other assurancesproperty is located in a special flood hazard area, certificatesevidence of flood insurance confirming that such insurance has been obtained, documents, consents or opinions as which certificate shall be in a form and substance reasonably satisfactory to the Administrative Agent, it being understood and agreed that the L/C Issuers or condition in this clause (xi) has been satisfied as of the Required Lenders reasonably may requiredate hereof.
(b) Any fees fees, costs and expenses required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Effective Date to any Agent or Incremental Lender
(i) pursuant to any commitment, fee or engagement letters (including that certain fee letter dated as of May 7, 2015, among Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc., as the sole book running manager and sole lead arranger for the Incremental Facilities described herein, and the Borrower), or (ii) otherwise for which invoices have been received at least one Business Day prior to the Effective Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent Agents (directly to such counselcounsel if requested by the Agents) to the extent invoiced at least two one Business Days Day prior to or on the Closing Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing and customary post- closing proceedings included in such invoices (provided provided, that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative AgentAgents). Without limiting the generality .
(d) The payments and repayments specified in Section 2 above shall have been completed and made, as applicable.
(e) Immediately before and after giving effect to this Amendment, (i) each of the provisions representations and warranties contained in Section 6 of this Amendment, Article V of the last paragraph Credit Agreement and in any of Section 9.03the other Loan Documents shall be true and correct in all material respects on and as of the Effective Date, for purposes except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of determining compliance with such earlier date and the conditions specified representations and warranties contained in this Section 4.01, each Lender that has signed this Sections 5.05(a) and 5.05(b) of the Credit Agreement shall be deemed to have consented torefer to the most recent financial statements delivered pursuant to Sections 6.01(a) and 6.01(b), approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent as applicable and (ii) no Default shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretooccurred and be continuing.
Appears in 1 contract
Samples: Credit Agreement
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals Agreement, sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and the Borrower;
(ii) a Revolving Credit Note executed by the Borrower(s) Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note and a Term Note executed by the Borrower in favor of each Term Lender requesting a Term Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in (A) its jurisdiction of organizationorganization and (B) each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx & Xxxxxxx Xxxxxxxxx Xxxxxxx, LLP, counsel to the Loan Parties, addressed to the Administrative Agent Agent, each Lender and each LenderL/C Issuer, as to such customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a), (b) and (bd) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2017, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in writing in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect;
(viii) a Solvency Certificate signed by from the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Restatement Effective Date (including, without limitation, all Credit Extensions to occur on the Closing Restatement Effective Date), the Loan Parties Borrower and their its Subsidiaries, taken as a whole and on a consolidated basiswhole, are Solvent;
(ix) a duly completed Compliance Certificate, giving pro forma effect to the transactions to occur on or about the Restatement Effective Date (including, without limitation, all Credit Extensions to occur on the Restatement Effective Date) (such Compliance Certificate, the “Pro Forma Restatement Effective Date Compliance Certificate”);
(x) the financial statements referenced in Section 5.05(a), (b) and (bd);
(xi) evidence that the Prudential Note Documents have been, or substantially concurrently with the Restatement Effective Date are being, amended or amended and restated to conform the provisions relating to financial covenants and eligibility requirements for “pool properties” to the corresponding provisions with respect thereto in this Agreement pursuant to documentation reasonably satisfactory to the Administrative Agent; and
(xxii) such other assurances, certificates, documents, documents or consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders Agent reasonably may require.
(b) Any fees required hereunder or under the Fee Letter to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Restatement Effective Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced at least two Business Days (which invoice may be in summary form) prior to or on the Closing Restatement Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(d) All accrued and unpaid interest and fees with respect to the Revolving Credit Commitments and Loans under the Existing Credit Agreement as of (and immediately prior to giving effect to) the Restatement Effective Date shall have been, or concurrently with the extensions of credit being made hereunder on the Restatement Effective Date will be, paid in full.
(e) At least ten Business Days prior to the Restatement Effective Date, the Administrative Agent and each Lender shall have received documentation and other information with respect to each of the Loan Parties that is required, in the Administrative Agent’s or such Lender’s judgment, by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and regulations implemented by the US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Restatement Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness This Amendment shall become effective and be deemed effective as of this Agreement is the date hereof, subject to the satisfaction or waiver of the following conditions precedentprecedent that the Administrative Agent shall have received each of the following:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that Amendment executed by the Loan Parties agree to deliver after Borrower and the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement)Lenders;
(iib) a Revolving Note counterparts of the consent, amendment and reaffirmation agreement (the “Consent, Amendment and Reaffirmation”), substantially in the form of Exhibit C attached hereto, executed by the Borrower(sGuarantors;
(c) any amended and restated notes executed by the Borrower in favor of each Lender requesting a Notenote;
(iiid) such certificates a certificate of resolutions the Secretary or other action and incumbency certificates of Responsible Officers Assistant Secretary of each Loan Party certifying as to and attaching: (i) such Loan Party, in each case’s certificate or articles of incorporation or certificate of formation, as applicable, and all amendments thereto, certified as of a recent date by the Secretary of State (or other appropriate governmental official) of the jurisdiction of its organization (other than the certified articles of incorporation for each of AAR International, Inc. and AAR Supply Chain, Inc. which the Borrower shall promptly deliver to the Administrative Agent may require evidencing after the identitydate hereof), authority (ii) such Loan Party’s bylaws, limited liability company agreement or other equivalent governing documents, as applicable, and capacity all amendments thereto, (iii) resolutions duly adopted by the Board of Directors or equivalent governing body of such Loan Party authorizing the execution, delivery and performance of each Responsible Officer thereof authorized Loan Document to act as which it is a Responsible Officer in connection with party and (iv) the incumbency and signatures of the officers or representatives of such Loan Party executing this Agreement Amendment, the Consent, Amendment and Reaffirmation and the other Loan Documents to which such Loan Party is a partyDocuments, as applicable;
(ive) such documents and certifications as the Administrative Agent may reasonably require to evidence that a good standing certificate for each Loan Party is duly organized from the Secretary of State (or formed, and is validly existing and in good standing in other appropriate governmental official) of its jurisdiction of organization, dated as of a recent date;
(vf) a favorable certificate of the Borrower certifying that (i) the representations and warranties set forth in Section 3 below are true and correct on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, (ii) since July 18, 2019, no event or condition has occurred that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect, and (iii) no Event of Default or Default has occurred and is continuing;
(i) an opinion of Xxxxxx Debevoise & Xxxxxxx Pxxxxxxx LLP, counsel to the Loan Parties, addressed and (ii) an opinion of Rxxxxx X. Xxxxx, Vice President, General Counsel and Secretary of the Borrower, in each case, in form and substance acceptable to the Administrative Agent and each LenderAgent, as to such matters concerning relating to, among other things, the Loan Parties and enforceability of the Loan Documents as the Administrative Agent may reasonably requestAmended Credit Agreement;
(vih) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents at least five business days prior to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of hereof, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending orPatriot Act, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect extent requested at least ten days prior to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b)date hereof; and
(xi) such other assurances, certificates, documents, consents or opinions as payment of the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required prescribed to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Datedate hereof in that certain fee letter, plus such additional amounts dated as of such feesSeptember 13, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts 2019 between the Borrowers Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Aar Corp)
Conditions of Effectiveness. The effectiveness This Amendment shall become effective as of this Agreement is subject to satisfaction or waiver of the first date (the “Amendment No. 4 Effective Date”) on which the following conditions precedent:
shall have been satisfied (or waived by the Agent and the Purchasing Term Lender): (a) The Administrative Agent’s receipt the Agent shall have received (i) counterparts of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly this Amendment executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and the Purchasing Term Lender, (ii) from each of the Consenting Lenders that, collectively, constitute the Required Lenders before giving effect to the Non-Consenting Lender Assignments, a duly executed Lender Consent and (iii) after giving effect to the Non-Consenting Lender Assignments and the operation of the proviso set forth in Section 9.04(b)(ii)(C) of the Credit Agreement, a Lender Consent duly executed by the Purchasing Term Lender and the other Consenting Lenders constituting all Lenders:
; (b) to the extent requested by the Agent, the Agent and the Purchasing Term Lender shall have received (i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers certificate of each Loan Party, dated the Amendment No. 4 Effective Date and executed by its Secretary, Assistant Secretary or director, which shall (A) certify the resolutions of its Board of Directors, members or other body authorizing the execution, delivery and performance of this Amendment (and any agreements relating thereto) to which it is a party, (B) identify by name and title and bear the signatures of the other officers of such Loan Party authorized to sign the Amendment (and any agreements relating thereto) to which it is a party, (C) either (1) contain appropriate attachments, including the certificate or articles of incorporation or organization of each such Loan Party (and in the case of any such Loan Party, certified by the relevant authority of the jurisdiction of organization of such Loan Party), and a true and correct copy of its by-laws, memorandum and articles of incorporation or operating, management, partnership or equivalent agreement to the extent applicable, in each case, certified as the Administrative Agent may require evidencing the identityof a recent date or (2) include a written certification by such Loan Party’s secretary, authority and capacity of each assistant secretary or other Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which that such Loan Party is a party;
(iv) such Party’s certificate or articles of incorporation or organization or other applicable constitutive documents most recently certified and certifications as delivered to the Administrative Agent may reasonably require prior to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel the Amendment No. 4 Effective Date pursuant to the Loan Parties, addressed to Documents remain in full force and effect on the Administrative Agent Amendment No. 4 Effective Date without modification or amendment since such original delivery and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viD) a certificate of a Responsible Officer of the Parent Borrower either (A1) attaching attach copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance consummation by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, Amendment and certify that such consents, licenses and approvals shall be are in full force and effect, or (B2) stating state that no such consents, licenses or approvals are so required;
required and (viiii) a good standing certificate signed by for each Loan Party from the applicable governmental authority of its jurisdiction of incorporation; (c) the Agent and the Purchasing Term Lender shall have received a certificate from a Responsible Officer of the Parent Borrower dated the Amendment No. 4 Effective Date certifying that (Aa) the representations and warranties of each Loan Party set forth in Section 4 of this Amendment shall be true and correct in all material respects on and as of the Amendment No. 4 Effective Date before and after giving effect to this Amendment; provided that, to the extent that such representations and warranties expressly relate to an earlier date, they shall be true and correct in all material respects as of such earlier date (excluding the conditions specified representations set forth in Sections 4.02(aSection 3.13 and Section 3.15(a) of the Credit Agreement which shall be true and correct in all material respects as of the Amendment No. 4 Effective Date after giving effect to this Amendment); provided further that any representation and warranty that is qualified as to materiality or “Material Adverse Effect” shall be true and correct in all respects on the Amendment No. 4 Effective Date or on such earlier date, as the case may be after giving effect to any such qualification as to materiality or “Material Adverse Effect” and (b) no Default or Event of Default shall have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could occurred and be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect continuing both before and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solventthis Amendment;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Clean Harbors Inc)
Conditions of Effectiveness. The effectiveness This Amendment shall become effective as of this Agreement is subject to satisfaction or waiver the first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedentprecedent shall have been satisfied:
(a) The Administrative Agent’s receipt Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent (x) counterparts of this Amendment executed by the Borrower, the Administrative Agent and those Lenders comprising Required Lenders or, as to any of such Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, and (y) the consent attached hereto (the “Consent”) executed by each of the followingGuarantors.
(b) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, counterparts of an amendment to the Pledge Agreement executed by each of which the parties thereto.
(c) The Administrative Agent shall be originals have received, in form and substance reasonably satisfactory to the Administrative Agent (a) a certificate of each Loan Party and of each general partner or e-mails (managing member thereof certifying as to the matters required by the certificate described in a .pdf formatSection 3.01(a)(viii) or telecopies (of the Existing Credit Agreement, in each casecase as of the Amendment Effective Date, followed promptly by originals(b) unless otherwise specified, a certificate of the Secretary or an Assistant Secretary of each properly executed by a Loan Party (or Responsible Officer of the signing general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, each dated or of the Closing Date (orgeneral partner or managing member of such Loan Party, in the case of certificates of governmental officials, a recent date before the Closing Date) authorized to sign this Amendment and each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder and (c) certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by this Amendment and each Loan Document contemplated hereby to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(d) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and each of the Lenders:
Agent, (i) executed counterparts an amendment of this the Revolving Credit Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
and (ii) a Revolving Note executed by an amendment to the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each 7 Year Term Loan PartyAgreement, in each case, as case modifying the underlying agreement to account for the terms herein and making certain other corresponding modifications.
(e) (i) the fees provided for in Section 10 and (ii) all of the reasonable out-of-pocket expenses of the Administrative Agent may require evidencing (including the identity, authority reasonable fees and capacity expenses of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as for the Administrative Agent, ) due and payable on the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Amendment Effective Date shall have been paidpaid in full.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness obligations of this Agreement is subject the Lenders to satisfaction make Loans (or waiver to purchase participations in Swingline Loans) and of the Issuing Bank to issue Letters of Credit hereunder shall become effective on the date on which each of the following conditions precedent:is satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the following, each Administrative Agent (which may include telecopy or other electronic transmission of which a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall be originals or e-mails have received reasonably satisfactory written opinions (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of addressed to the signing Loan Party, each Administrative Agent and the Lenders and dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) of New York counsel for the Credit Parties, covering such matters as the Required Lenders shall reasonably request. The Credit Parties hereby request such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and each certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Credit Parties, the authorization of the Transactions and any other legal matters relating to the Credit Parties, this Agreement or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President, a Vice President or a Financial Officer of each of the LendersCredit Party, stating that:
(i) executed counterparts the representations and warranties contained in Article III of this Agreement (it being understood that the Loan Parties agree to deliver after are correct on and as of the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);Date; and
(ii) no event has occurred and is continuing that constitutes a Revolving Note executed Default.
(e) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower(s) in favor of each Lender requesting a Note;Borrower hereunder.
(iiif) such certificates of resolutions or other action The Borrower shall have repaid all obligations owing and incumbency certificates of Responsible Officers of each Loan Partyoutstanding under the Existing Agreement, in each case, as and terminated the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;commitments thereunder.
(ivg) such documents All governmental and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and material third party approvals (other than the resolutions referenced in clause (iii) above) required necessary in connection with the execution, delivery and performance by such Loan Party of this Agreement shall have been obtained and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the . The Administrative Agent shall notify the Borrower and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent Lenders of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus and such additional amounts of such fees, charges notice shall be conclusive and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)binding. Without limiting the generality of the provisions of the last third paragraph of Section 9.03Article IX, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required thereunder hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness This Amendment shall become effective as of this Agreement is subject to satisfaction or waiver the first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedentprecedent shall have been satisfied:
(a) The Administrative Agent’s receipt Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent (x) counterparts of this Amendment executed by the Borrower, the Administrative Agent and those Lenders whose consent is required under Section 9.01 of the followingExisting Credit Agreement or, as to any of such Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, and (y) the consent attached hereto (the “Consent”) executed by each of which the Guarantors.
(b) The Administrative Agent shall be originals have received, in form and substance reasonably satisfactory to the Administrative Agent (a) a certificate of each Loan Party and of each general partner or e-mails (managing member thereof certifying as to the matters required by the certificate described in a .pdf formatSection 3.01(a)(viii) or telecopies (of the Existing Credit Agreement, in each casecase as of the Amendment Effective Date, followed promptly by originals(b) unless otherwise specified, a certificate of the Secretary or an Assistant Secretary of each properly executed by a Loan Party (or Responsible Officer of the signing general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, each dated or of the Closing Date (orgeneral partner or managing member of such Loan Party, in the case of certificates of governmental officials, a recent date before the Closing Date) authorized to sign this Amendment and each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder and (c) certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by this Amendment and each Loan Document contemplated hereby to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(c) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and each Agent, evidence of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each Loan Party, in each case, as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party substantially concurrent effectiveness of an amendment of the 2018 Revolver/Term Loan Documents Agreement, modifying the underlying agreement to which it is a party, account for the terms herein and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any making certain other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Datecorresponding modifications.
(d) Unless waived by (i) the Administrative Agent, fees provided for in Section 4 and (ii) all of the Parent Borrower shall have paid all fees, charges and disbursements reasonable out-of-pocket expenses of counsel to the Administrative Agent (directly to such counsel) to including the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts reasonable fees and expenses of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and counsel for the Administrative Agent). Without limiting ) due and payable on the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent Amendment Effective Date shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretobeen paid in full.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 and Section 3 of this Agreement is Amendment shall be subject to the satisfaction or waiver of each of the following conditions precedent:
(a1) The Administrative Agent’s receipt of Agent shall have received from the following, each of which shall be originals or e-mails (in Borrower and the Required Lenders a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly duly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date original (or, if elected by the Administrative Agent, an executed facsimile copy) of this Amendment;
(2) The Administrative Agent shall have received (i) from the Borrower and each Guarantor a duly executed original (or, if elected by the Administrative Agent, an executed facsimile copy) of the Security Agreement and any other Collateral Documents contemplated by the Security Agreement, including the Control Agreements (as defined therein) and (ii) from the Borrower, if requested by any Lender, a Note (or replacement Note), substantially in the case form of certificates Exhibit C to the Credit Agreement; provided that, the Borrower may deliver any Control Agreements required to be delivered under the Security Agreement which are not delivered by the Effective Date, no later than fifteen days after such date (such period may be extended by up to an additional fifteen days in the sole discretion of governmental officialsthe Administrative Agent).
(3) The Administrative Agent shall have received the consent, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent, of each Guarantor in its capacity as such to the execution and delivery hereof by the Borrower.
(4) The Administrative Agent shall have received evidence of payment by the Borrower of all fees, costs and each expenses due and payable as of the Lenders:Effective Date under or in connection with this Amendment and the Credit Agreement, including any fees arising under or referenced in Section 6 of this Amendment and any costs and expenses payable under Section 7(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, in each case to the extent invoiced on or prior to the Effective Date).
(i5) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) The Administrative Agent shall have received such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party certified as of the Effective Date as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement Amendment and the other Loan Documents to which such Loan Party is a party;party and to authorize, execute, delivery and perform the Amendment Documents.
(iv6) The Administrative Agent shall have received such documents and certifications from the Secretary of State (or similar, applicable Governmental Authority) as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in its jurisdiction state of incorporation, formation or organization;, and each state in which its principal offices are located, as the case may be, as of a recent date.
(v7) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the The Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) shall have received a certificate of a Responsible Officer of the Parent Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Amendment Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;.
(vii) a certificate signed by a Responsible Officer 8) The Administrative Agent shall have received evidence that all insurance required to be maintained pursuant to the Amendment Documents has been obtained and is in effect, together with certificates of insurance and endorsements, naming the Administrative Agent, on behalf of the Parent Secured Parties, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral; provided that, the Borrower certifying may deliver such certificates of insurance and endorsements which are not delivered by the Effective Date, no later than fifteen days after such date.
(9) The Administrative Agent shall have received: (A) that acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the conditions specified in Sections 4.02(a) and Liens of the Administrative Agent (b) have been satisfiedfor the benefit of the Secured Parties), (B) or other evidence satisfactory to the Administrative Agent that there has been no event filed, registered or circumstance since recorded (or arrangements made with a reputable filing service to file, register or record) all financing statements and other filings, registrations and recordings necessary and advisable to perfect the date Liens of the Audited Financial Statements Administrative Agent (for the benefit of the Secured Parties) in accordance with applicable law; and (B) such Lien and judgment searches as the Administrative Agent shall have requested, and such termination statements or other documents as may be necessary, to confirm that has had or could be reasonably expected the Collateral is subject to have, either individually or no other Liens in favor of any Persons (other than Liens permitted under Section 7.01 under the Credit Agreement).
(10) The Administrative Agent shall have received such other evidence satisfactory to the Administrative Agent as it shall require to confirm that the Liens granted to the Administrative Agent (for the benefit of the Secured Parties) in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, Collateral pursuant to the knowledge of any Loan PartyCollateral Documents are valid, threatened in any court or before any arbitrator or Governmental Authority that perfected, first priority Liens, subject to no other Liens (1) relates to this Agreement or any other Loan Documentthan Liens permitted under Section 7.01 under the Credit Agreement), or any of securing the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;Secured Obligations.
(viii11) a Solvency Certificate signed by the chief financial officer or the chief accounting officer The Administrative Agent shall have received opinions of the Parent Borrower certifying that, after giving effect counsel to the transactions Borrower and each Domestic Subsidiary, in form and substance satisfactory to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, and addressed to the L/C Issuers Administrative Agent and the Lenders, dated the Effective Date.
(12) The Administrative Agent shall have received all other documents it or the Required Lenders may reasonably may requirerequest relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(13) The representations and warranties in Section 4 of this Amendment shall be true and correct on and as of the Effective Date with the same effect as if made on and as of the Effective Date.
(b) Any fees required Immediately prior to be paid to and as of the LendersEffective Date, the Administrative Agent and the Arrangers on or before the Closing Date Total Outstandings shall have been paidnot exceed $150,000,000.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for For purposes of determining compliance with the conditions specified in this Section 4.015(a), each Lender that has signed this Agreement Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Effective Date specifying its objection thereto.
(d) From and after the Effective Date, the Credit Agreement is amended as set forth herein, and all outstanding Notes under the Credit Agreement shall be superseded and replaced by the Notes delivered under this Amendment. All such previously outstanding Notes will be deemed cancelled upon the occurrence of the Effective Date. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(e) The Administrative Agent will notify the Borrower and the Lenders of the occurrence of the Effective Date.
Appears in 1 contract
Samples: First Amendment and Waiver Agreement (Pacer International Inc)
Conditions of Effectiveness. The effectiveness This Amendment shall become effective as of this Agreement is subject to satisfaction or waiver the first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedentprecedent shall have been satisfied:
(a) The Administrative Agent’s receipt Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent (x) counterparts of this Amendment executed by the Borrower, the Administrative Agent and those Lenders comprising Required Lenders or, as to any of such Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, and (y) the consent attached hereto (the “Consent”) executed by each of the followingGuarantors.
(b) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, counterparts of each of which the Pledge Agreement and the Intercreditor Agreement executed by each of the parties thereto.
(c) The Administrative Agent shall be originals have received, in form and substance reasonably satisfactory to the Administrative Agent (a) a certificate of each Loan Party and of each general partner or e-mails (managing member thereof certifying as to the matters required by the certificate described in a .pdf formatSection 3.01(a)(viii) or telecopies (of the Existing Credit Agreement, in each casecase as of the Amendment Effective Date, followed promptly by originals(b) unless otherwise specified, a certificate of the Secretary or an Assistant Secretary of each properly executed by a Loan Party (or Responsible Officer of the signing general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, each dated or of the Closing Date (orgeneral partner or managing member of such Loan Party, in the case of certificates of governmental officials, a recent date before the Closing Date) authorized to sign this Amendment and each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder and (c) certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by this Amendment and each Loan Document contemplated hereby to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(d) The Administrative Agent shall be satisfied that all filings necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Pledge Agreement will be made promptly following the Amendment Effective Date.
(e) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and each of the Lenders:
Agent, (i) executed counterparts an amendment of this the 7 Year Term Loan Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
and (ii) a Revolving Note executed by an amendment to the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each 5 Year Term Loan PartyAgreement, in each case, as case modifying the underlying agreement to account for the terms herein and making certain other corresponding modifications.
(f) (i) the fees provided for in Section 10 and (ii) all of the reasonable out-of-pocket expenses of the Administrative Agent may require evidencing (including the identity, authority reasonable fees and capacity expenses of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as for the Administrative Agent, ) due and payable on the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Amendment Effective Date shall have been paidpaid in full.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness This Amendment and the obligation of this Agreement is subject each Fifth Amendment Incremental Revolving Lender to satisfaction or waiver of provide its Fifth Amendment Incremental Revolving Commitment shall become effective on the date (such date, the “Fifth Amendment Effective Date”) on which the following conditions precedentshall have been satisfied:
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received from each Fifth Amendment Incremental Revolving Lender, each Issuing Bank, Holdings, each Borrower, each other U.S. Loan Party, each other Swiss Loan Party and each other Loan Party organized under the laws of Luxembourg (each, a “Luxembourg Loan Party”) either (x) a counterpart of this Amendment signed on behalf of such party or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Amendment by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Amendment.
(b) The Administrative Agent shall have received a copy of (i) each organizational or constitutional document of each U.S. Loan Party, each Swiss Loan Party and each Luxembourg Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority or as of the followingFifth Amendment Effective Date by a director or an authorized representative of such Loan Party (where customary in any applicable jurisdiction), each which shall, for the avoidance of which shall be originals or edoubt, include in the case of a Swiss Loan Party a copy of (x) up-mails to-date and certified articles of association (in a .pdf formatStatuten), (y) or telecopies an up-to-date and certified excerpt of the competent commercial register and (z) an electronic copy of the register of beneficial owners (Verzeichnis der wirtschaftlich Berechtigten) and an electronic copy of the quota register (Anteilbuch), in each case, followed promptly by originalsrelating to such Swiss Loan Party; (ii) unless otherwise specifiedsignature and incumbency certificates (where customary in any applicable jurisdiction) of the responsible officers or authorized representatives of each Loan Party executing this Amendment, (iii) copies of resolutions (or extracts of resolutions) of the board of directors or managers, shareholders, partners, and/or similar governing bodies, as applicable, of each properly executed Loan Party executing this Amendment approving and authorizing the execution, delivery and performance of this Amendment and the Amended Credit Agreement, certified as of the Fifth Amendment Effective Date by a Responsible Officer secretary, an assistant secretary, a responsible officer or an authorized representative of such Loan Party as being in full force and effect without modification or amendment and (iv) a good standing certificate (to the extent such concept, or an analogous concept, exists) from the applicable Governmental Authority of the signing jurisdiction of incorporation, organization or formation of each Loan PartyParty executing this Amendment.
(c) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders) of (i) Xxxx, Xxxxx, Rifkind, Xxxxxxx & Xxxxxxxx LLP, special New York counsel for the Loan Parties, (ii) CMS Luxembourg, Luxembourg counsel for the Loan Parties, (iii) Ogier, Luxembourg counsel to the Administrative Agent and (iv) Xxxxxxxxx XX, Swiss counsel to the Administrative Agent, in each case (A) dated as of the Closing Fifth Amendment Effective Date and (B) in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent and each Fifth Amendment Incremental Revolving Lender shall have received, at least three Business Days prior to the Fifth Amendment Effective Date, all documentation and other information about the Borrowers and the Guarantors that shall have been reasonably requested by such Person in writing at least 10 Business Days prior to the Fifth Amendment Effective Date and that such Person reasonably determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act including, if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the conditions set forth in this clause (d) shall be deemed to be satisfied).
(e) The representations and warranties of each Loan Party set forth in Section 4 hereof and in the Loan Documents shall be true and correct in all material respects (or, in the case of certificates of governmental officials, a recent date before the Closing Date) representations and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each Loan Party, in each case, as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, warranties qualified as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, materiality or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;, in all respects) on and as of the Fifth Amendment Effective Date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date.
(viiif) The Lenders shall have received a Solvency Certificate signed by certificate from a Financial Officer of Holdings, substantially in the chief financial officer or form of Exhibit K to the chief accounting officer Amended Credit Agreement, certifying as to the solvency of Holdings and its Restricted Subsidiaries as of the Parent Borrower certifying that, Fifth Amendment Effective Date on a consolidated basis after giving effect to the transactions to occur on contemplated hereby.
(g) No Event of Default of the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Datetype set forth in Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing or shall result from the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;transactions contemplated by this Amendment.
(ixh) The Administrative Agent shall have received a certificate from a Financial Officer of Holdings, dated the financial statements referenced Fifth Amendment Effective Date, confirming compliance with the condition set forth in Section 5.05(aSections 5(e) and (bg); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(bi) Any fees required to be paid to the Lenders, the The Administrative Agent and the Arrangers shall have received all fees payable thereto on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Fifth Amendment Effective Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all feesincluding, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two (2) Business Days prior to or on the Closing Fifth Amendment Effective Date, plus such additional amounts reimbursement or payment of such all reasonable and documented out-of-pocket expenses (including fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or counsel) required to be incurred reimbursed or paid by it through the closing proceedings Loan Parties hereunder or under any other Loan Document on or prior to the Fifth Amendment Effective Date.
(provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the j) The Administrative Agent shall have received notice from such Lender prior the results of a recent UCC, tax and judgment lien search in each relevant U.S. jurisdiction with respect to each of the proposed Closing Date specifying its objection theretoLoan Parties as the Administrative Agent may request.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness This Amendment shall become effective as of this Agreement is subject to satisfaction or waiver the first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedentprecedent shall have been satisfied:
(a) The Administrative Agent’s receipt Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent (x) counterparts of this Amendment executed by the Borrower, the Administrative Agent and those Lenders comprising Required Lenders or, as to any of such Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, and (y) the consent attached hereto (the “Consent”) executed by each of the followingGuarantors.
(b) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, counterparts of an amendment to the Pledge Agreement executed by each of which the parties thereto.
(c) The Administrative Agent shall be originals have received, in form and substance reasonably satisfactory to the Administrative Agent (a) a certificate of each Loan Party and of each general partner or e-mails (managing member thereof certifying as to the matters required by the certificate described in a .pdf formatSection 3.01(a)(viii) or telecopies (of the Existing Credit Agreement, in each casecase as of the Amendment Effective Date, followed promptly by originals(b) unless otherwise specified, a certificate of the Secretary or an Assistant Secretary of each properly executed by a Loan Party (or Responsible Officer of the signing general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, each dated or of the Closing Date (orgeneral partner or managing member of such Loan Party, in the case of certificates of governmental officials, a recent date before the Closing Date) authorized to sign this Amendment and each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder and (c) certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by this Amendment and each Loan Document contemplated hereby to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(d) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and each of the Lenders:
Agent, (i) executed counterparts an amendment of this the 7 Year Term Loan Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
and (ii) a Revolving Note executed by an amendment to the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each 5 Year Term Loan PartyAgreement, in each case, as case modifying the underlying agreement to account for the terms herein and making certain other corresponding modifications.
(e) (i) the fees provided for in Section 10 and (ii) all of the reasonable out-of-pocket expenses of the Administrative Agent may require evidencing (including the identity, authority reasonable fees and capacity expenses of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as for the Administrative Agent, ) due and payable on the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Amendment Effective Date shall have been paidpaid in full.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement and the obligation of each Term Lender to make its Term Loan hereunder is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, or e-mails mail (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Restatement Effective Date (or, in the case of certificates of governmental officialsofficials and the Borrower Detail Form, a recent date before the Closing Restatement Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Credit Note executed by the Borrower(s) Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note and a Term Note executed by the Borrower in favor of each Term Lender requesting a Term Note;
(iii) such Such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in (A) its jurisdiction of organizationorganization and (B) each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, opinions addressed and reasonably satisfactory to the Administrative Agent Agent, the L/C Issuers and each Lenderthe Lenders, from counsel reasonably acceptable to the Administrative Agent, as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2023 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and Effect, (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, have a Material Adverse EffectEffect and (D) a calculation of the ratio of Total Indebtedness to Total Asset Value as of the last day of the fiscal year of the REIT ended December 31, 2023;
(viii) a Solvency Certificate signed by from the chief financial officer or the chief accounting officer of the Parent Borrower REIT certifying that, after giving effect to the transactions to occur on the Closing Restatement Effective Date (including, without limitation, all Credit Extensions to occur on the Closing Restatement Effective Date), the each Loan Parties Party is, individually and their Subsidiaries, taken as a whole and together with its Subsidiaries on a consolidated basis, are Solvent;
(ix) a duly completed compliance certificate, giving pro forma effect to the transactions to occur on the Restatement Effective Date (including, without limitation, all Credit Extensions to occur on the Restatement Effective Date);
(x) duly completed Borrower Detail Form signed by a Responsible Officer of the Borrower;
(xi) the financial statements referenced in Section 5.05(a) and (b); and;
(xxii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the any L/C Issuers Issuer, the Required Lenders or the Required Term Lenders reasonably may require.
(b) Any fees required hereunder or under the Fee Letters to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Restatement Effective Date shall have been paid.
(c) The receipt by Completion of all due diligence with respect to the REIT, the Borrower, and their respective Subsidiaries and properties in scope and determination satisfactory to the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirementsAgent, the Beneficial Ownership Regulation (including a Beneficial Ownership CertificationBookrunners, if requested), the Arrangers and other customary requirements, the Lenders in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Datetheir sole discretion.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced at least two Business Days (which invoice may be in summary form) prior to or on the Closing Restatement Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(e) At least ten Business Days prior to the Restatement Effective Date, the Administrative Agent and each Lender shall have received documentation and other information with respect to each of the Loan Parties that is required, in the Administrative Agent’s or such Lxxxxx’s judgment, by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification) and regulations implemented by the US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act.
(f) All amounts owing (whether or not due) under the Existing Credit Agreement and related documents through and including the Restatement Effective Date to each Departing Lender shall have been (or shall concurrently be) paid in full, and all accrued and unpaid interest and fees (whether or not due), and all other amounts payable, under the Existing Credit Agreement shall have been (or shall concurrently be) paid in full. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Restatement Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness This Amended and Restated Credit Agreement shall become effective on and as of this Agreement is subject to satisfaction or waiver the first date (the “Restatement Effective Date”) on which all of the following conditions precedentprecedent shall have been satisfied:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals Agreement, sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and the Borrower;
(ii) a Revolving Note executed by the Borrower(s) Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in (A) its jurisdiction of organizationorganization and (B) each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx Hunton & Xxxxxxx Xxxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying that (A) that the conditions specified in Sections 4.02(a) and (b) this Section 4.01 have been satisfiedsatisfied (other than those conditions contingent upon the satisfaction of the Administrative Agent and/or the Lenders with respect to certain items received by them under this Section 4.01), (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2012 that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and Effect, (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could would reasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect;, (D) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Initial Maturity Date, except (x) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, (y) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such date after giving effect to such qualification and (z) for purposes of this Section 4.01(a)(viii), the representation and warranty contained in subsection (a) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsection (a) or (b) of Section 6.01, and (E) no Default exists.
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of from the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Restatement Effective Date (including, without limitation, all Credit Extensions to occur on the Closing Restatement Effective Date), the each Loan Parties Party is, individually and their Subsidiaries, taken as a whole and together with its Subsidiaries on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(xix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers Issuer, the Arranger or the Required Lenders reasonably may require.
(b) Any fees required hereunder or under the Fee Letter to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Restatement Effective Date shall have been paid.
(c) The receipt by Completion of all due diligence with respect to the Borrower, Guarantors, Investment Assets and Collateral in scope and determination satisfactory to the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirementsAgent, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), Arranger and other customary requirements, Lenders in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.their sole discretion;
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced at least two Business Days (which invoice may be in summary form) prior to or on the Closing Restatement Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(e) The representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct as of the Restatement Effective Date (except to the extent any such representation or warranty only speaks of a different date).
(f) No Default shall exist, or would result from the making of any Credit Extension on the proposed Restatement Effective Date or from the application of the proceeds thereof. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Restatement Effective Date specifying its objection thereto. On the Restatement Effective Date, (i) the participation interests of the Lenders in any outstanding Letters of Credit shall be automatically reallocated among the Lenders in accordance with their respective Applicable Percentages after giving effect to the increase in the Aggregate Commitments occurring on the Restatement Effective Date, (ii) any Lender that was not a party to the Original Credit Agreement, and any Lender party to the Original Credit Agreement whose Commitment has increased on the Restatement Effective Date, shall pay to the Administrative Agent such amounts as are necessary to fund its new or increased Applicable Percentage of all existing Revolving Credit Loans, (iii) the Administrative Agent will use the proceeds thereof to pay to all Lenders whose Applicable Percentage is decreasing on the Restatement Effective Date such amounts as are necessary so that each Lender’s participation in existing Revolving Credit Loans will be equal to its adjusted Applicable Percentage, and (iv) if the Restatement Effective Date occurs on a date other than the last day of an Interest Period applicable to any outstanding Revolving Credit Loan that is a Eurodollar Rate Loan, then the Borrower shall pay any amounts required pursuant to Section 3.05 on account of the payments made pursuant to clause (iii) of this sentence.
Appears in 1 contract
Samples: Credit Agreement (American Residential Properties, Inc.)
Conditions of Effectiveness. (a) The effectiveness of this Agreement is subject to satisfaction or waiver Amendments contained in Section 2 above shall not be effective until the date each of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersprecedent has been satisfied:
(i) executed counterparts the Administrative Agent has received a counterpart of this Agreement Amendment (it being understood that which may be by telecopy or other electronic transmission) executed by the Borrower, the MLP, the other Loan Parties agree to deliver after Parties, the Closing Date originals sufficient in number for distribution to Administrative Agent, and each Lender requesting an originally executed copy of this Agreement)Lender;
(ii) the Administrative Agent has received (x) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers certificate of each Loan Party, in each case, dated as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either date hereof and executed by an appropriate officer, which shall (A) attaching copies of all consents, licenses and approvals (other than certify the resolutions referenced in clause (iii) above) required in connection with or other action authorizing the execution, delivery and performance of this Eleventh Amendment and (B) certify that certain documents previously delivered to the Administrative Agent are in full force and effect as of the date hereof or contain appropriate attachments, including the certificate or articles of incorporation or organization or equivalent constitutional documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and the validity against such a true and correct copy of its bylaws or operating, management or partnership agreement, and incumbency certificates, and (y) a good standing certificate for each Loan Party from its jurisdiction of the Loan Documents to which it is incorporation or organization as of a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;recent date; and
(viiiii) the Administrative Agent has received a certificate signed by a Responsible Officer of the Parent Borrower certifying that (A) that the conditions specified representations and warranties contained in Sections 4.02(a) Article V of the Credit Agreement are true and correct in all material respects on and as of such date (b) have been satisfiedunless such representations and warranties specifically refer to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (B) that no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date (after giving effect to this Amendment), (C) since March 31, 2020, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could reasonably be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect Effect, (D) there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement and as to which notice has not been given, and (CE) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Partysuch officer, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement by or against the Borrower, any other Loan DocumentGuarantor, the MLP’s general partner, or any of the transactions contemplated hereby or thereby, or (2) their respective properties that could reasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect. The Administrative Agent agrees that it will, upon the satisfaction of the conditions contained in this Section 4(a), promptly provide notice to the Borrower and the Lenders of the occurrence of the Eleventh Amendment Effective Date.
(b) The Amendments contained in Section 3 above shall not be effective until the date each of the following conditions precedent has been satisfied:
(i) if the Exchange Offer will be completed on the Eleventh Amendment Effective Date, the Administrative Agent has received an amended and restated promissory note payable to each Lender that has previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to the Credit Agreement (as amended hereby); provided that each such Lender receiving a replacement promissory note hereby agrees to return its existing original promissory note to the Borrower promptly after receiving such replacement promissory note;
(viiiii) a Solvency Certificate signed by if the chief financial officer or Exchange Offer will be completed on the chief accounting officer Eleventh Amendment Effective Date, the Borrower has paid (x) an amendment fee (the “Amendment Fee”) to the Administrative Agent (for the benefit of each Lender party hereto) in an aggregate amount equal to 0.25% of each such Lender’s Commitment as of the Parent Borrower certifying that, Eleventh Amendment Effective Date (after giving effect to the transactions amendments becoming effective on such date) and (y) the Administrative Agent’s reasonable legal fees and expenses to occur on the Closing Date extent invoiced at least one (including, without limitation, all Credit Extensions 1) Business Day prior to occur on the Closing Eleventh Amendment Effective Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ixiii) either (x) the financial statements referenced Administrative Agent has received evidence in Section 5.05(aform and substance satisfactory to it that the Exchange Offer will be completed on the Eleventh Amendment Effective Date with no more than $36,500,000 in principal amount of MLP Senior Notes outstanding after giving effect thereto or (y) and (b)the Exchange Offer Deadline has occurred; and
(xiv) such other assurances, certificates, documents, consents or opinions as if the Administrative Agent, Exchange Offer will be completed on the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the LendersEleventh Amendment Effective Date, the Administrative Agent has received that certain Intercreditor Agreement, dated as of the Eleventh Amendment Effective Date, in form and substance satisfactory to the Arrangers on or before Administrative Agent (it being understood that the Closing Date shall have been paid.
(c) The receipt form of Intercreditor Agreement received by the Administrative Agent of all necessary information in connection with on the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), date hereof is satisfactory) and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived duly executed by the Administrative Agent, the Parent Loan Parties and the other parties thereto. The Administrative Agent agrees that it will, upon the satisfaction of the conditions contained in this Section 4(b), promptly provide notice to the Borrower and the Lenders of the occurrence of the Eleventh Amendment Effective Date. If the Eleventh Amendment Effective Date occurs as a result of the Exchange Offer Deadline occurring without the completion of the Exchange Offer by such date, the Borrower agrees to (i) pay the Amendment Fee within one (1) Business Day after the Exchange Offer Deadline, and that any failure to pay such amount shall have paid all fees, charges constitute an immediate Event of Default and disbursements of counsel (ii) provide to the Administrative Agent (directly an amended and restated promissory note payable to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this previously requested a promissory note, as applicable, or that is requesting a promissory note pursuant to Section 2.09(a) of the Credit Agreement shall be deemed in the amount of such Lender’s Commitment as indicated on Schedule 2.01 to have consented to, approved or accepted or to be satisfied with, the Credit Agreement (as amended hereby); provided that each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior receiving a replacement promissory note hereby agrees to return its existing original promissory note to the proposed Closing Date specifying its objection theretoBorrower promptly after receiving such replacement promissory note.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement as set forth herein is subject to satisfaction or waiver of the following conditions precedentprecedent that:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Note executed by the Borrower(s) Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers a secretary or assistant secretary or similar officer of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in its jurisdiction of organizationincorporation or formation;
(v) a favorable customary opinion of Xxxxxx Xxxxxx, Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and enforceability of the Loan Documents as and other matters reasonably requested by the Administrative Agent may reasonably requestAgent;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all third party consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party the Borrower and the validity against such Loan Party the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying certifying, as of the Closing Date, (A) that the conditions specified representations and warranties of the Loan Parties set forth in Sections 4.02(a) the Loan Documents are true and correct in all material respects (b) except to the extent that such representation and warranty is qualified by materiality, in which case they shall have been satisfiedtrue and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, (B) no Default or Event of Default has occurred and is continuing or, after giving effect to the initial Borrowing contemplated hereunder (if any) or the application of proceeds therefrom, immediately would result therefrom; and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually have or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to haveresult in, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying thatthat the Borrower (on a consolidated basis with the Subsidiaries), after giving effect to the transactions to occur on the Closing Date initial Borrowing contemplated hereunder (including, without limitation, all Credit Extensions to occur on the Closing Dateif any), the Loan Parties application of the proceeds thereof and their Subsidiariesthe consummation of the other transactions contemplated hereby, taken as a whole and on a consolidated basis, are is Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(xix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid to by the Lenders, the Administrative Agent and the Arrangers Borrower on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(d) The Administrative Agent and each Lender shall have received all documentation and other information that the Administrative Agent and each such Lender shall have reasonably requested in order to comply with its respective obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(e) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any -40- Lender requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary, in each case, at least three (3) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails electronic copies (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer duly authorized officer of the applicable signing Loan Party, each dated as of the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement (it being understood that executed by the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and each Loan Party;
(ii) a Revolving each Note executed by the Borrower(s) Borrowers in favor of each Lender requesting a NoteNote or Notes;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers [Reserved];
(iv) [Reserved];
(v) [Reserved];
(vi) [Reserved];
(vii) a certificate of each Loan Party, in each casedated as of the Effective Date and executed by a secretary, assistant secretary or other senior officer (as the Administrative Agent case may require evidencing be) thereof, which shall (A) certify that attached thereto is a true and complete copy of the identityresolutions or written consents of its shareholders, authority partners, managers, members, board of directors, board of managers or other governing body authorizing the execution, delivery and capacity performance of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which it is a party and, in the case of the Borrowers, the borrowings hereunder, and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which it is a partyparty on the Effective Date and (C) certify (x) that attached thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or other equivalent thereof) of such Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its by-laws or operating, management, partnership or similar agreement and (y) that such documents or agreements have not been amended, restated, amended and restated, supplemented or otherwise modified (except as otherwise attached to such certificate and certified therein as being the only amendments, restatements, amendments and restatements, supplements or modifications thereto as of such date) and (ii) a good standing (or equivalent) certificate as of a recent date for such Loan Party from (A) its jurisdiction of organization and (B) in each jurisdiction in which it is qualified to engage in business where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except, in the case of this clause (B), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viviii) a certificate of a Responsible Officer duly authorized officer of the Parent Borrower each Loan Party either (A) attaching copies of stating that all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, party have been received and such consents, licenses and approvals shall be are in full force and effect, effect or (B) stating that no such consents, licenses or approvals are so requiredrequired in connection with the consummation by such Loan Party of the Transactions;
(viiix) a certificate signed by a Responsible Officer of the Parent Borrower Holdings certifying (A) that the conditions specified set forth in Sections 4.02(aSection 4.01(f), (h) and (bi) have been satisfied, (B) that there has been no event or circumstance since the date satisfied as of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effectsuch date;
(viiix) a Solvency Certificate signed by solvency certificate, substantially in the chief financial officer or form of Exhibit L from a Responsible Officer of Holdings (or, at the chief accounting officer option of the Parent Borrower certifying thatHoldings, after giving effect a customary third-party opinion as to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties solvency of Holdings and their its Subsidiaries, taken as a whole and on a consolidated basis, are Solvent);
(ixxi) a Borrowing Base Certificate covering the financial statements referenced in Section 5.05(aBorrowing Base as of October 31, 2021, with customary supporting documentation;
(xii) and (b)[Reserved]; and
(xxiii) such other assurancesthe executed opinion of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, certificatescounsel to the Loan Parties, documents, consents or opinions as addressed to the Administrative Agent, the Lenders and the L/C Issuers or Issuer, as to such matters concerning the Required Lenders Loan Parties and the Loan Documents as the Administrative Agent may reasonably may requirerequest.
(b) (i) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Effective Date to the Administrative Agent, any Arranger or the Lenders pursuant to the Fee Letter shall have been paid and (ii) any costs and expenses required to be paid on or before the Effective Date to the Administrative Agent, any Arranger or the Lenders to the extent invoices have been received by Holdings at least two Business Days prior to the Effective Date (or such later date as reasonably agreed by Holdings) shall have been paid.
(c) The receipt by [Reserved].
(d) [Reserved].
(e) [Reserved].
(f) On the Administrative Agent Effective Date, neither Holdings nor any of all necessary information its Subsidiaries shall have any material Indebtedness for borrowed money (other than any Loans and Letters of Credit outstanding on the Effective Date), purchase money Indebtedness, Capital Lease Obligations, working capital facilities for Foreign Subsidiaries, other Indebtedness incurred in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested)ordinary course of business, and other customary requirementsIndebtedness permitted pursuant to Section 7.02.
(g) [Reserved].
(h) The representations and warranties of each Loan Party and its Subsidiaries contained in this Agreement and each other Loan Document, shall be true and correct in all material respects (or, if such representation or warranty is subject to a materiality or Material Adverse Effect qualification, in each all respects) on and as of the Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date.
(i) No Default or Event of Default shall have occurred and be continuing, or would result from, the consummation of the Transactions (including any Credit Extension to be delivered by made on the Loan Parties not later than five Effective Date and the application of the proceeds thereof).
(j) [Reserved].
(k) [Reserved].
(l) The Administrative Agent shall have received, at least 3 Business Days prior to the Closing Date Effective Date, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act, to the extent such information is requested not later than ten by the Administrative Agent or any Lender at least 10 Business Days prior to the Closing Effective Date.
(dm) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two No later than three Business Days prior to or on the Closing Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)Agent and Lenders shall have received a Beneficial Ownership Certification in relation to each Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for For purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder under any Loan Document to be consented to or approved by or acceptable or satisfactory to a Lender such Lender, unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Effective Date specifying its objection thereto.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Warrior Met Coal, Inc.)
Conditions of Effectiveness. The effectiveness This Agreement shall become effective as of this Agreement is subject to satisfaction or waiver the first date (the “First Amendment Effective Date”) that all of the following conditions precedentprecedent shall have been satisfied:
(a) 3.1 The Administrative Agent’s receipt of the following, each of which shall be originals or e-e- mails (in a .pdf format) or telecopies (in each case, followed promptly by originalsoriginals to the extent set forth below or otherwise requested by the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) specified and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(ia) executed counterparts of this Agreement (it being understood that Agreement, in such number as requested by the Loan Parties agree to deliver after Administrative Agent, duly executed by the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement)parties hereto;
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iiib) such certificates of resolutions or other action and action, incumbency certificates of Responsible Officers and/or other certificates of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(ivc) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(vd) a favorable opinion of Xxxxxx & Xxxxxxx LLP and Proskauer Rose LLP, each counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such the matters concerning the Loan Parties Parties, this Agreement and the other Loan Documents as the Administrative Agent may reasonably request;
(vie) a certificate of a Responsible Officer of the Parent Borrower either to the effect that (Ai) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) 3.2 and 3.3 have been satisfied and (bii) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect occurred and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b)continuing which constitutes an Unmatured Default; and
(xf) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers Agent or the Required Lenders reasonably may require.
3.2 The representations and warranties contained in Section 4 of this Agreement are correct on and as of the First Amendment Effective Date, as though made on and as of such date other than any such representations or warranties that, by their terms, refer to another date, in which case such representations and warranties shall have been correct as of such other date.
3.3 There shall not have occurred since June 30, 2020, any event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect (b) Any fees required to be paid excluding any event or circumstance resulting from the COVID-19 pandemic to the Lenders, extent such event or circumstance has been has been publicly disclosed by the Borrower in its securities filings or disclosed by the Borrower to the Administrative Agent and the Arrangers Lenders prior to the First Amendment Effective Date, and the scope of such adverse effect is no greater than that which has been disclosed).
3.4 The Administrative Agent and each Lender shall have received all documentation and other information that the Administrative Agent or such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S. Patriot Act, and the Beneficial Ownership Regulation, in each case, to the extent requested at least five Business Days prior to the First Amendment Effective Date.
3.5 Any fees owed to any Lender or Arranger required to be paid on or before the Closing First Amendment Effective Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Inland Real Estate Income Trust, Inc.)
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedentTHIS AMENDMENT SHALL BE DEEMED EFFECTIVE AS OF THE FIRST DATE (SUCH DATE BEING REFERRED TO HEREIN AS THE “THIRD AMENDMENT EFFECTIVE DATE”) ON WHICH ALL OF THE FOLLOWING CONDITIONS PRECEDENT HAVE BEEN SATISFIED OR WAIVED IN WRITING:
(a) The the Administrative Agent’s receipt of the following, in such number as reasonably requested by the Administrative Agent,, each of which shall be originals original, or e-mails mail (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Third Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Third Amendment Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that Amendment from each of the Loan Parties agree to deliver after Parties, the Closing Date originals sufficient in number for distribution to Administrative Agent, and each Lender requesting an originally executed copy of this Agreement)the Lenders and L/C Issuers;
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and each Loan Party is validly existing and existing, in good standing and qualified to engage in business in (A) its jurisdiction of organizationorganization and (B) each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxxx & Xxxxxxx Procter LLP, counsel to the Loan Parties, addressed to the Administrative Agent Agent, each Lender and each LenderL/C Issuer, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(v) a favorable opinion of Xxxxxxx LLP, local counsel to the Loan Parties in Maryland, addressed to the Administrative Agent, each Lender and each L/C Issuer, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such each Loan Party Party, and the validity against such each Loan Party Party, of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;; and
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying that (A1) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1A) relates to challenges the validity or enforceability of this Agreement or Amendment, the Existing Credit Agreement, the Amended Credit Agreement, any other Loan Document, Document or any of the transactions contemplated hereby or thereby, or otherwise purports to restrict or prohibit the performance of all or any portion of this Amendment, the Existing Credit Agreement, the Amended Credit Agreement, any other Loan Document or any of the transactions contemplated hereby or thereby or (B) could reasonably be expected to have a Material Adverse Effect, (2) since December 31, 2021, there has not occurred any event or condition that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) Effect and (b); and
(x3) such other assurances, certificates, documents, consents no Default or opinions as Event of Default has occurred and is continuing under the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may requireExisting Credit Agreement.
(b) Any fees required to be paid At least five Business Days prior to the LendersThird Amendment Effective Date, the Administrative Agent and the Arrangers on or before the Closing Date Lenders shall have been paid.
(c) The receipt received documentation and other information with respect to each of the Loan Parties required by the Administrative Agent of all necessary information in connection with the PATRIOT Act, regulatory authorities under applicable “know your customer” requirementsand anti-money laundering rules and regulations, including, without limitation, the Beneficial Ownership Regulation USA Patriot Act (including a Beneficial Ownership CertificationTitle III of Pub. L. 107 56 (signed into law October 26, if requested2001), ) and other customary requirements, in each case to be delivered regulations implemented by the Loan Parties not later than five Business Days prior to US Treasury’s Financial Crimes Enforcement Network under the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing DateBank Secrecy Act.
(dc) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced at least two Business Days (which invoice may be in summary form) prior to or on the Closing Third Amendment Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness This Amendment shall be deemed effective as of this Agreement is subject the first date (such date being referred to satisfaction or waiver herein as the “Amendment Effective Date”) on which all of the following conditions precedentprecedent have been satisfied or waived in writing:
(a) The the Administrative Agent’s receipt of the following, in such number as reasonably requested by the Administrative Agent,, each of which shall be originals original, or e-mails mail (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Amendment Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that Amendment from each of the Loan Parties agree to deliver after Parties, the Closing Date originals sufficient in number for distribution to Administrative Agent, and each Lender requesting an originally executed copy of this Agreement)the Lenders and L/C Issuers;
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and each Loan Party is validly existing and existing, in good standing and qualified to engage in business in (A) its jurisdiction of organizationorganization and (B) each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxxx & Xxxxxxx Procter LLP, counsel to the Loan Parties, addressed to the Administrative Agent Agent, each Lender and each LenderL/C Issuer, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(v) a favorable opinion of Xxxxxxx LLP, local counsel to the Loan Parties in Maryland, addressed to the Administrative Agent, each Lender and each L/C Issuer, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such each Loan Party Party, and the validity against such each Loan Party Party, of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying that (A1) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1A) relates to challenges the validity or enforceability of this Agreement or Amendment, the Existing Credit Agreement, the Amended Credit Agreement, any other Loan Document, Document or any of the transactions contemplated hereby or thereby, or otherwise purports to restrict or prohibit the performance of all or any portion of this Amendment, the Existing Credit Agreement, the Amended Credit Agreement, any other Loan Document or any of the transactions contemplated hereby or thereby or (B) could reasonably be expected to have a Material Adverse Effect, (2) since December 31, 2019, there has not occurred any event or condition that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse EffectEffect and (3) no Default or Event of Default has occurred and is continuing under the Existing Credit Agreement;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of from the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Amendment Effective Date (including, without limitation, all Credit Extensions to occur on the Closing Amendment Effective Date), the Loan Parties Parent and their Subsidiaries, taken as a whole and its Subsidiaries on a consolidated basis, basis are Solvent;; and
(ix) a certificate, substantially in the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents form of Exhibit E to the Amended Credit Agreement or opinions as otherwise satisfactory to the Administrative Agent, signed by a Responsible Officer of the L/C Issuers Parent and evidencing that, giving pro forma effect as of December 31, 2019 to the transactions to occur on or about the Required Lenders Amendment Effective Date (including, all Credit Extensions to occur on the Amendment Effective Date and the use of proceeds thereof), as of the date of the Amendment Effective Date, the Loan Parties are in pro forma compliance with the financial covenants contained in Section 7.11 of the Amended Credit Agreement, setting forth a calculation of the ratio of Total Indebtedness to Total Asset Value as of the last day of the fiscal quarter ending December 31, 2019, and including a schedule of Unencumbered Eligible Properties, all in form and detail reasonably may require.satisfactory to the Administrative Agent
(b) Any fees required to be paid to the Lenders, The Administrative Agent and each Lender shall have received all documentation and other information that the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information such Lender requests in connection order to comply with the PATRIOT Act, its ongoing obligations under applicable “know your customer” requirementsand anti-money laundering rules and regulations, including the PATRIOT Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), ) and other customary requirements, in each case to be delivered by the Loan Parties not later than requirements at least five (5) Business Days prior to the Closing Amendment Effective Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Amendment Effective Date.
(c) Prior to or contemporaneously with this Amendment becoming effective, the Borrower shall have (i) made a prepayment of the Term Loans under the Existing Credit Agreement such that the Outstanding Amount of the Term Loans immediately after giving effect to this Amendment shall be $215,000,000 and (ii) prepaid in full all Swing Line Loans, if any, outstanding under the Existing Credit Agreement.
(d) The Administrative Agent shall have received payment of all interest and fees that have accrued through and including the Amendment Effective Date with respect to the Term Loans and Swing Line Loans made under the Existing Credit Agreement and outstanding on the Amendment Effective Date prior to the prepayments described in clause (c) above.
(e) All fees required hereunder or under the Fee Letters to be paid on or before the Amendment Effective Date to the Administrative Agent, the Arrangers, the Bookrunners and/or the Lenders shall have been paid.
(f) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced at least two Business Days (which invoice may be in summary form) prior to or on the Closing Amendment Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.039.03 of the Amended Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4.013, each Lender and L/C Issuer that has signed this Agreement Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, including any non-prorata prepayment of Term Loans made pursuant to clause (c)(i) above, and each Lender unless with a new Term Commitment or whose Term Commitment has increased on the Amendment Effective Date, shall make a Term Loan in the amount necessary to fund its new or increased Term Commitment, and the Administrative Agent shall have received notice from will use the proceeds thereof to pay all existing Term Lenders whose Term Commitment is decreasing on the Amendment Effective Date such Lender prior amounts as are necessary so that the Outstanding Amount of each Lender’s Term Loans will be equal to such Lender’s Term Commitment on the proposed Closing Amendment Effective Date specifying its objection theretoas set forth on the Schedule 2.01 included in Annex II.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness Section 3.1. This Waiver shall become effective upon receipt by the Lender of this Agreement is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt each of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent Lender and each of the Lendersits counsel:
(ia) this Waiver, duly executed counterparts of this Agreement (it being understood that by the Loan Parties agree to deliver after Companies and the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement)Guarantors;
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each Loan Party, in each case, as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vib) a certificate of a Responsible Officer the Secretary of the Parent Borrower either ED certifying: (A) attaching copies that neither its Certificate of all consents, licenses Incorporation nor By-laws has been amended since the date of their certification; (B) that attached thereto is a true and approvals (other than a complete copy of resolutions adopted by the resolutions referenced in clause (iii) above) required in connection with Board of Directors of ED authorizing the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Guaranty, the Security Agreement and each other Loan Documents Document to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect ; and (C) that no actionthe incumbency and specimen signature of each officer of ED executing each Loan Document to which it is a party and any certificates or instruments furnished pursuant hereto, suit, investigation or proceeding is pending or, and a certification by another officer of ED as to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any incumbency and signature of the transactions contemplated hereby or therebySecretary, or (2) could reasonably be expected to have, either individually or in and together with certified copies of the aggregate, a Material Adverse EffectCertificate of Incorporation and By-laws of ED;
(viiic) a Solvency Certificate signed by certificate of good standing for ED from the chief financial officer or the chief accounting officer Secretary of the Parent Borrower certifying thatState of Delaware, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken dated as of a whole and on a consolidated basis, are Solventrecent date;
(ixd) an Officer's Certificate, substantially in the financial statements referenced form of Exhibit 1 attached hereto, duly executed by the Companies;
(e) a Joinder Agreement, substantially in Section 5.05(athe form of Exhibit 2 attached hereto, duly executed by ED, together with (i) a Schedule A to the Security Agreement completed with respect to ED and (b)ii) UCC-1 financing statements in a form acceptable to the Lender for such jurisdictions as the Lender determines are necessary to perfect the liens created by the Security Agreement with respect to ED;
(f) a favorable opinion of counsel for ED dated as of the date hereof, as required pursuant to Section 6.14 of the Credit Agreement;
(g) a certificate of insurance from an independent insurance broker confirming the insurance required to be maintained pursuant to Section 6.01 of the Credit Agreement with respect to ED; and
(xh) such other assurances, certificates, documents, consents or instruments, agreements, approvals, opinions and evidence as the Administrative Agent, the L/C Issuers or the Required Lenders Lender may reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Eon Labs Inc)
Conditions of Effectiveness. The effectiveness of this This Agreement is subject shall not become effective, and no Fronting Bank or Lender shall have an obligation to make its initial Credit Extension hereunder, until satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails facsimiles or sent by electronic mail (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals Agreement, sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy and each Borrower as of this Agreement)the Effective Date;
(ii) a Revolving Security Agreement and Control Agreement for each Borrower executed by the parties thereto with such number of counterparts as may be requested by the Administrative Agent;
(iii) a Note executed by the Borrower(s) each Borrower in favor of each Lender requesting a Note;
(iiiiv) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers the Secretary or Assistant Secretary of each Loan Party, in each case, Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party Borrower is a party;
(ivv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party Borrower is duly organized or formed, and is validly existing and existing, in good standing (to the extent such concept is applicable) and qualified to engage in its business in the jurisdiction of organizationin which it is organized;
(vvi) a favorable opinion from each of Xxxxxx (A) Skadden, Arps, Slate, Meager & Xxxxxxx Xxxx LLP, New York counsel to the Loan PartiesBorrowers, and (B) Xxxxxxx Xxxx & Xxxxxxx, Bermuda counsel to the Borrowers, in each case addressed to the Administrative Agent Agent, the Fronting Bank and each Lender, as Lender and in form and substance reasonably acceptable to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestAgent;
(vivii) a certificate of a Responsible Officer of the Parent each Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party each Borrower and the validity against such Loan Party Borrower of the Loan Documents to which it is a party, and confirming that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiviii) (A) a certificate signed by a Responsible Officer of the Parent each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfied and (B) that there has been no event or circumstance since the date a certificate signed by a Responsible Officer of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority Alterra Capital certifying that (1) relates to this Agreement or any other Loan Documentsince December 31, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or 2010 there has not occurred a material adverse change in the aggregatebusiness assets, a Material Adverse Effect;
properties, results of operations or condition (viiifinancial or otherwise) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties Alterra Capital and their its Subsidiaries, taken as a whole whole; and on a consolidated basis, are Solvent(2) the current Financial Strength Rating of Alterra Bermuda;
(ix) the financial Financial Strength Rating of Alterra Bermuda shall be A- or better;
(x) a Borrowing Base Certificate for each Borrower executed by a Responsible Officer of such Borrower calculated as of the most recent Business Day in accordance with the requirements hereof and demonstrating compliance with Section 6.10 with respect to such Borrower;
(xi) the Existing Credit Agreements shall have been terminated and all loans, interest, fees and other costs and expenses due and owing through the Effective Date shall have been paid in full;
(xii) a Master Participation Agreement executed by all of the Lenders, the lenders under the Existing Credit Agreements and the Administrative Agent in form and substance satisfactory to the Administrative Agent;
(xiii) satisfactory evidence that there are no Liens on the Collateral Accounts and no financing statements referenced in Section 5.05(aor other similar filings with respect thereto other than those under the Existing Credit Agreement and Liens permitted under Sections 7.06(b) and (bn);
(xiv) a letter from the Process Agent agreeing to the terms of Section 11.14(d); and
(xxv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers Administrator, the Lender or the Required Lenders may reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Effective Date shall have been paidpaid to the extent invoiced at least one (1) Business Day prior thereto.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower Alterra Capital and Alterra Bermuda shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced at least two Business Days one day prior to or on the Closing Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Alterra Capital, Alterra Bermuda and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedentTHIS AGREEMENT SHALL BECOME EFFECTIVE AS OF THE FIRST DATE (THE “FOURTH AMENDMENT EFFECTIVE DATE”) THAT ALL OF THE FOLLOWING CONDITIONS PRECEDENT SHALL HAVE BEEN SATISFIED:
(a) 2.1 The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originalsoriginals to the extent set forth below or otherwise requested by the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) specified and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(ia) executed counterparts of this Agreement (it being understood that Agreement, in such number as requested by the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Note Administrative Agent, duly executed by the Borrower(s) in favor of each Lender requesting a Note;Borrower, the Guarantors, the Administrative Agent and Lenders constituting Required Lenders.
(iiib) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vic) a certificate of a Responsible Officer of the Parent Borrower either to the effect that no event has occurred and is continuing which constitutes a Default;
(Ad) attaching copies a fully executed copy of all consentsan amendment, licenses and approvals in each case dated as of (other than or prior to) the resolutions referenced Fourth Amendment Effective Date, to each of the following (each as defined in clause the Intercreditor Agreement):
(i) the Regions Term Loan Agreement;
(ii) the Huntington Term Loan Agreement;
(iii) abovethe PNC Term Loan Agreement; and
(iv) required the Prudential Note Agreement.
2.2 The representations and warranties contained in connection with the execution, delivery Section 3 are correct on and performance by such Loan Party and the validity against such Loan Party as of the Loan Documents Fourth Amendment Effective Date, as though made on and as of such date other than any such representations or warranties that, by their terms, refer to another date, in which it is a party, case such representations and such consents, licenses and approvals warranties shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedcorrect as of such other date.
2.3 There shall not have occurred since December 31, (B) that there has been no 2017, any event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to havecircumstance, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation has had or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect;
Effect (viii) a Solvency Certificate signed excluding any event or circumstance resulting from the COVID-19 pandemic to the extent such event or circumstance has been publicly disclosed by the chief financial officer Borrower in its securities filings or disclosed in writing by the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days Lenders prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Fourth Amendment Effective Date, plus such additional amounts and the scope of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided adverse effect is no greater than that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agentwhich has been disclosed). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of This Amendment shall become effective on the following conditions precedentfirst date (the “Amendment No. 1 Effective Date”) on which:
(a) The the Administrative Agent’s receipt Agent shall have received counterparts of this Amendment executed by the Company, each Designated Borrower and the Required Lenders or, as to any of the followingLenders, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance evidence satisfactory to the Administrative Agent and each of the Lenders:
(i) that such Lender has executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement)Amendment;
(iib) a Revolving Note executed by the Borrower(s) in favor Administrative Agent shall have received, for the ratable account of each Lender requesting that has executed and delivered a Note;counterpart hereof to the Administrative Agent on or prior to the Amendment No. 1 Effective Date, a consent fee in an amount equal to 0.10% of the Aggregate Commitments of such Lender; NYDOCS02/1231838
(iiic) the Administrative Agent shall have received (i) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of a Responsible Officers Officer, a secretary or assistant secretary of each Loan Party, in each case, as the Administrative Agent may require Company evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement Amendment and the other Loan Documents to which such Loan Party the Company is a party;
party and (ivii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Company is duly organized or formed, and that the Company is validly existing and existing, in good standing and qualified to engage in business in its jurisdiction of organizationincorporation;
(vd) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) shall have received a certificate of a Responsible Officer of the Parent Borrower Company either (Ai) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party the Company and the validity against such Loan Party the Company of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (Bii) stating that no such consents, licenses or approvals are so required;
(viie) the Administrative Agent shall have received a certificate of the Company dated as of the date hereof signed on behalf of the Company by a Responsible Officer of the Parent Borrower Company, certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date on behalf of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;Company that:
(viiii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, immediately before and after giving effect to this Amendment and the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date)contemplated hereby, the representations and warranties set forth in Article V of the Credit Agreement and each other Loan Parties Document are true and their Subsidiariescorrect in all material respects on and as of the Amendment No. 1 Effective Date, taken except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects on and as a whole of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and on a consolidated basiswarranties that already are qualified or modified by materiality or Material Adverse effect in the text thereof, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) which case such qualified representations and (b)warranties shall be true and correct in all respects; and
(xii) such other assuranceson and as of the Amendment No. 1 Effective Date, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.no Default has occurred and is continuing; and
(bf) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless unless waived by the Administrative Agent, the Parent Borrower Company shall have paid (or substantially concurrently with the satisfaction of the other conditions set forth herein, on the Amendment No. 1 Effective Date, shall pay) all reasonable and documented costs and expenses of the Administrative Agent in connection with the preparation, negotiation, execution and delivery of this Amendment (including the reasonable and documented fees, disbursements and other charges and disbursements of Shearman & Sterling LLP as special New York counsel to the Administrative Agent (directly to such counselAgent) to the extent invoiced at least two one (1) Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender Day prior to the proposed Closing Date specifying its objection thereto.Effective Date. NYDOCS02/1231838
Appears in 1 contract
Samples: Credit Agreement (Tiffany & Co)
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed (if applicable) by a Responsible Officer of the signing Loan PartyParty (which, subject to Section 10.10(b), may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to from each Lender requesting an originally executed copy of this Agreement)party hereto;
(ii) a Revolving Note executed by the Borrower(s) Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and in good standing in its jurisdiction of organizationorganization or formation;
(v) a favorable customary opinion of Xxxxxx Lxxxxx & Xxxxxxx Wxxxxxx LLP, counsel to the Loan Parties, and Vxxxxxx LLP, special Maryland counsel to the Guarantor, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, ;
(Bvii) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected Guarantor referred to have, either individually or in the aggregate, a Material Adverse Effect;Section 5.05(a); and
(viii) a Solvency Certificate signed by solvency certificate from the chief financial officer officer, treasurer or the chief accounting other senior financial officer of the Parent Borrower certifying that, after giving effect to substantially in the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken form attached hereto as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.Exhibit F.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date pursuant to the Fee Letters shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all reasonable, documented, out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced at least two five (5) Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(d) The Closing Date Refinancing shall be consummated substantially simultaneously with the Closing Date.
(i) The Administrative Agent shall have received, at least five days prior to the Closing Date, all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing of the Borrower at least 10 days prior to the Closing Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Safehold Inc.)
Conditions of Effectiveness. The effectiveness obligations of this Agreement is subject the Lenders to satisfaction make Loans (or waiver to purchase participations in Swingline Loans) and of the Issuing Banks to issue Letters of Credit hereunder shall become effective on the date on which each of the following conditions precedent:is satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received from each party hereto a counterpart of this Agreement signed on behalf of such party (which, subject to Section 10.06(b), may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page).
(b) The Administrative Agent shall have received reasonably satisfactory written opinions (addressed to the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Administrative Agent and the signing Loan Party, each Lenders and dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) of New York counsel for the Credit Parties, covering such matters as the Required Lenders shall reasonably request. The Credit Parties hereby request such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and each certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Credit Parties, the authorization of the Transactions and any other legal matters relating to the Credit Parties, this Agreement or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President, a Vice President or a Financial Officer of each of the LendersCredit Party, stating that:
(i) executed counterparts the representations and warranties contained in Article III of this Agreement (it being understood that the Loan Parties agree to deliver after are correct on and as of the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);Date; and
(ii) no event has occurred and is continuing that constitutes a Revolving Note executed Default.
(e) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower(s) in favor of each Lender requesting a Note;Borrower hereunder.
(iiif) such certificates of resolutions or other action All governmental and incumbency certificates of Responsible Officers of each Loan Party, in each case, as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and material third party approvals (other than the resolutions referenced in clause (iii) above) required necessary in connection with the execution, delivery and performance by such Loan Party of this Agreement shall have been obtained and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;.
(viii) a certificate signed by a Responsible Officer of The Administrative Agent shall have received, at least three days prior to the Parent Closing Date, all documentation and other information regarding the Borrower certifying (A) that requested in connection with applicable "know your customer" and anti-money FOURTH AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT – Page 71 laundering rules and regulations, including the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending orPatriot Act, to the knowledge of any Loan Party, threatened extent requested in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any writing of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days at least 10 days prior to the Closing Date and (ii) to the extent such information is requested not later than ten Business Days the Borrower qualifies as a "legal entity customer" under the Beneficial Ownership Regulation, at least three days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all feesany Lender that has requested, charges and disbursements of counsel in a written notice to the Administrative Agent (directly to such counsel) to the extent invoiced Borrower at least two Business Days 10 days prior to or on the Closing Date, plus a Beneficial Ownership Certification in relation to the Borrower shall have received such additional amounts Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of such feesits signature page to this Agreement, charges and disbursements as the condition set forth in this clause (ii) shall constitute its reasonable estimate of such fees, charges and disbursements incurred or be deemed to be incurred by it through satisfied). The Administrative Agent shall notify the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent)Lenders of the Closing Date, and such notice shall be conclusive and binding. Without limiting the generality of the provisions of the last third paragraph of Section 9.03Article IX, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required thereunder hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement Amendment is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt Agent shall have received counterparts of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) this Amendment duly executed counterparts of this Agreement (it being understood that by the Loan Parties agree to deliver after Borrower, the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
Required Lenders and the Administrative Agent, (ii) a Revolving Note the Consent and Reaffirmation attached hereto duly executed by the Borrower(s) in favor of each Lender requesting a Note;
Subsidiary Guarantors and (iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each Loan Party, in each case, as the Administrative Agent may require evidencing Pledge Agreement duly executed by the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the applicable Loan Parties and the Loan Documents as the Administrative Agent.
(b) The Administrative Agent may reasonably request;
(vi) shall have received a certificate of the Secretary or an Assistant Secretary of each Loan Party (i) certifying (w) that there have been no changes in the Certificate of Incorporation or other charter document of such Loan Party, as attached thereto and as certified as of a Responsible Officer recent date by the Secretary of State (or analogous governmental entity) of the Parent Borrower either jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (Ax) that there have been no changes to the By-Laws or other applicable organizational document of such Loan Party since August 30, 2017, or that if there have been changes thereto since such date, attaching copies thereto the current version thereof as in effect on the date of all consentssuch certification, licenses and approvals (y) resolutions of the Board of Directors or other than the resolutions referenced in clause (iii) above) required in connection with governing body of such Loan Party authorizing the execution, delivery and performance by such of this Amendment and each Loan Document (as amended hereby) to which it is a party, and (z) the names and true signatures of the incumbent officers of each Loan Party and the validity against such Loan Party of authorized to sign the Loan Documents to which it is a party, and such consents, licenses and approvals shall be (in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer the case of the Parent Borrower certifying (ABorrower) that authorized to request a Borrowing or the conditions specified in Sections 4.02(a) issuance of a Letter of Credit under the Amended Credit Agreement and (bii) have been satisfied, attaching a Good Standing Certificate (Bor analogous documentation if applicable) that there has been no event for such Loan Party from the Secretary of State (or circumstance since the date analogous governmental entity) of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending orjurisdiction of its organization, to the knowledge of any Loan Party, threatened extent generally available in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paidjurisdiction.
(c) The receipt by Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated as of all necessary information in connection with the PATRIOT Actdate hereof) of (i) Xxxxx Lovells US LLP, “know your customer” requirementsspecial New York and Delaware counsel to the Loan Parties and (ii) internal counsel to the Loan Parties as to certain corporate capacity and authorization matters and non-New York, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), non-federal and other customary requirementsnon-Delaware law matters, in each case in form and substance reasonably satisfactory to be delivered by the Administrative Agent and covering such matters relating to the Loan Parties not later than five Business Days prior Parties, the Loan Documents, this Amendment and the transactions contemplated hereby as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsels to the Closing Date to the extent deliver such information is requested not later than ten Business Days prior to the Closing Dateopinions.
(d) Unless waived The Administrative Agent shall have received:
(i) the results of a recent lien search in the jurisdiction of organization of each Loan Party and each other jurisdiction required by the Administrative Agent, and such searches shall reveal no Liens on any of the Parent Equity Interests owned by the Loan Parties except for liens discharged on or prior to the date hereof pursuant to a pay-off letter or other documentation reasonably satisfactory to the Administrative Agent;
(ii) the certificates representing the Equity Interests pledged pursuant to the Pledge Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof in each case, to the extent required to be delivered pursuant to the Pledge Agreement; and
(iii) each document (including any Uniform Commercial Code financing statements) required by the Collateral Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, which shall be in proper form for filing, registration or recordation.
(e) To the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, any Lender that has requested, in a written notice to the Borrower at least five (5) days prior to the date hereof, a Beneficial Ownership Certification in relation to the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to received such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings Beneficial Ownership Certification (provided that that, upon the execution and delivery by such estimate shall not thereafter preclude a final settling Lender of accounts between its signature page to this Amendment, the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified condition set forth in this Section 4.01, each Lender that has signed this Agreement clause (e) shall be deemed to be satisfied).
(f) The Administrative Agent shall have consented toreceived, approved or accepted or for the account of each Lender party hereto that delivers its executed signature page to be satisfied withthis Amendment by no later than the date and time specified by the Administrative Agent, each document or other matter required thereunder an amendment fee in an amount equal to be consented the amount previously disclosed to or approved by or acceptable or satisfactory to a Lender unless the Lenders and agreed with the Borrower.
(g) The Administrative Agent shall have received notice from such Lender payment of the Administrative Agent’s and its affiliates’ reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses of counsel for the Administrative Agent) in connection with this Amendment for which invoices have been presented prior to the proposed Closing Date specifying date hereof. The parties hereto agree that, to the extent necessary to effect the amendments contemplated hereby, the Administrative Agent is authorized to make such reallocations, sales, assignments or other relevant actions in respect of, in the case of a “Revolving Lender”, its objection thereto“Revolving Commitment” and “Revolving Exposure” as are necessary in order that each such Lender’s Revolving Exposure under the Amended Credit Agreement reflects such Lender’s Applicable Percentage thereof on the date hereof after giving effect to this Amendment.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness This Amendment shall become effective as of this Agreement is subject to satisfaction or waiver of the Amendment Effective Date when, and only when, the following conditions precedenthave been satisfied:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) electronic copies unless otherwise specified, each properly executed by a Responsible Officer duly authorized officer of the signing Loan Party, each dated the Closing Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement (it being understood that Amendment executed by the Loan Parties agree to deliver after Original Required Lenders, the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement)New Lenders, the Borrower and the Agent;
(ii) a Revolving Note executed by certified copies of the Borrower(s) in favor resolutions of each Lender requesting a Note;
(iii) such certificates the board of resolutions directors or other action and incumbency certificates of Responsible Officers equivalent governing body of each Loan PartyParty approving the Amendment Transactions, in each casethis Amendment, as the Administrative Agent may require evidencing the identity, authority Second Amended and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Restated Credit Agreement and the each other Loan Documents Document to which such it is or is to be a party and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Amendment Transactions, this Amendment, the Second Amended and Restated Credit Agreement and each other Loan Party Document to which it is a party;
(iviii) a copy of the certificate of the Secretary of State of the jurisdiction of incorporation or formation, as the case may be, of each Loan Party, dated a recent date before the Amendment Effective Date, certifying (A) as to a true and correct copy of the charter, article of formation, or such other constitutive document on file in such Secretary’s office and (B) that (1) such documents Loan Party has paid all franchise taxes to the date of such certificate and certifications as the Administrative Agent may reasonably require to evidence that each (2) such Loan Party is duly organized incorporated or formed, and is validly existing formed and in good standing in its or presently subsisting under the laws of the State of the jurisdiction of organizationincorporation or formation;
(iv) a certificate of each Loan Party signed on behalf of such Loan Party by its President or a Vice President and its Secretary, any Assistant Secretary or a duly authorized person, dated the Amendment Effective Date (the statements made in which certificate shall be true on and as of the Amendment Effective Date), certifying as to (A) the absence of any amendments to the charter or applicable constitutive documents of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 4(a)(iii) above, (B) a true and correct copy of the bylaws, limited liability company agreement, or partnership agreement of such Loan Party as in effect on the date on which the resolutions referred to in Section 4(a)(ii) above were adopted and on the Amendment Effective Date and (C) the due incorporation or formation and good standing or valid existence of such Loan Party as a corporation, limited liability company or partnership organized or formed under the laws of the jurisdiction of its incorporation or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party;
(v) a favorable opinion certificate of Xxxxxx & Xxxxxxx LLPthe Secretary, counsel an Assistant Secretary or a duly authorized person of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to the sign each Loan Parties, addressed Document to the Administrative Agent and each Lender, as which it is or is to such matters concerning the Loan Parties be a party and the Loan Documents as the Administrative Agent may reasonably requestother documents to be delivered hereunder and thereunder;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer Officer, or a duly authorized person, of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) of the Second Amended and Restated Credit Agreement have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viiivii) a certificates attesting to the Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, and its Subsidiaries on a consolidated basis before and after giving effect to the transactions Amendment Transactions, from its chief financial officer.
(viii) Notes executed by the Borrower in favor of each Lender that has requested Notes at least 2 Business Days prior to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Amendment Effective Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;; and
(ix) the financial statements referenced executed opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special New York counsel to the Loan Parties, addressed to the Agent and each Lender, substantially as to the matters set forth, mutatis mutandis, in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as Exhibit H to the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may requireOriginal Credit Agreement.
(b) Any fees required to be paid The New Lenders shall have received, to the Lendersextent requested, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paiddate which is two (2) Business Days prior to the Amendment Effective Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including the PATRIOT Act.
(c) The receipt (x) Any fees, costs and expenses required to be paid on or before the Amendment Effective Date to the Agent or any Arranger
(i) pursuant to any fee or engagement letters or (ii) otherwise for which invoices have been received at least one Business Day prior to the Amendment Effective Date, (y) an amendment fee to each Original Lender that has executed this Amendment by the Administrative Agent Amendment Effective Date in an aggregate amount equal to 0.375% of all necessary information such Original Lender’s Revolving Credit Commitment immediately prior to the Amendment Effective Date (the “Original Commitment”) and (z) a fee to each applicable Revolving Lender that has provided new commitments under the Revolving Facility in connection with an amount equal to 0.50% of the PATRIOT Act, “know your customer” requirements, amount of such Lender’s Revolving Credit Commitment on the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirementsAmendment Effective Date in excess of such Lender’s Original Commitment, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Dateshall have been paid.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Agent) to the extent invoiced at least two one Business Days Day prior to or on the Closing Amendment Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing and customary post-closing proceedings included in such invoices (provided provided, that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03.
(e) The conversions, for purposes of determining compliance with the conditions payments and repayments specified in this Section 4.016 below shall have been completed and made, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the as applicable.
(f) The Administrative Agent shall have received notice from such Lender satisfactory evidence that all outstanding indebtedness of the Loan Parties under the Existing Senior Notes shall have been redeemed, defeased and repaid in full prior to or substantially concurrently with the proposed Closing occurrence of the Amendment Effective Date.
(g) The Borrower shall have received, substantially simultaneously with the occurrence of the Amended Effective Date specifying its objection thereto(upon the satisfaction or waiver of each other condition set forth in this Section 4), gross cash proceeds of not less than $600,000,000 from the issuance of the Senior Notes.
Appears in 1 contract
Samples: Amendment Agreement
Conditions of Effectiveness. The effectiveness of the amendment and restatement of the Existing Credit Agreement pursuant to Section 1 of this Agreement is (the “Restatement Effective Date”) shall be subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received (i) from each of the followingBorrowers, the Required Lenders under the Existing Credit Agreement and each of which shall be originals the Term Lenders either a counterpart of this Agreement signed on behalf of such party or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance written evidence satisfactory to the Administrative Agent and each (which may include facsimile or other electronic transmission of the Lenders:
(ia signed signature page of this Agreement) executed counterparts that such party has signed a counterpart of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
and (ii) a Revolving Note the Consent and Reaffirmation attached hereto duly executed by the Borrower(s) in favor of each Lender requesting a Note;Subsidiary Guarantors.
(iiib) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each Loan Party, in each case, as the The Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
shall have received favorable written opinions (iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lenderthe Lenders and dated the Restatement Effective Date) of (i) the Chief Legal Officer of the Loan Parties, as to such matters concerning (ii) Xxxx Xxxxx LLP, special counsel for the Loan Parties and (iii) Xxxxx & XxXxxxxx LLP, Dutch counsel for the Loan Documents Parties, in each case covering such matters relating to the Loan Parties, the Loan Documents, this Agreement and the transactions contemplated hereby as the Administrative Agent may shall reasonably request;. The Company hereby requests such counsels to deliver such opinions.
(vic) The Administrative Agent shall have received:
(i) a certificate Certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (w) that there have been no changes in the Certificate of Incorporation or other charter document of such Loan Party, as attached thereto and as certified as of a Responsible Officer recent date by the Secretary of State (or analogous governmental entity) of the Parent Borrower either jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (Ax) attaching copies the By-Laws or other applicable organizational document, as attached thereto, of all consentssuch Loan Party as in effect on the date of such certification, licenses and approvals (y) resolutions of the Board of Directors or other than the resolutions referenced in clause (iii) above) required in connection with governing body of such Loan Party authorizing the execution, delivery and performance by such of each Loan Document to which it is a party, and (z) the names and true signatures of the incumbent officers of each Loan Party and the validity against such Loan Party of authorized to sign the Loan Documents to which it is a party, and such consents, licenses and approvals shall be (in full force and effect, the case of each Borrower) authorized to request a Borrowing or (B) stating that no such consents, licenses or approvals are so requiredthe issuance of a Letter of Credit under the Restated Credit Agreement;
(viiii) a certificate signed by a Responsible Officer Good Standing Certificate (or analogous documentation if applicable) for each Loan Party from the Secretary of State (or analogous governmental entity) of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date jurisdiction of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending orits organization, to the knowledge of any Loan Party, threatened extent generally available in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;such jurisdiction; and
(viiiiii) a Solvency Certificate signed by the chief financial officer President, a Vice President or the chief accounting officer a Financial Officer of the Parent Borrower Company certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
following: (x) such other assurances, certificates, documents, consents or opinions as all of the Administrative Agent, representations and warranties of the L/C Issuers or Borrowers set forth in the Required Lenders reasonably may require.
Restated Credit Agreement are true and correct in all material respects and (by) Any fees required to be paid to the Lenders, the Administrative Agent no Default has occurred and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Datethen continuing.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the The Administrative Agent shall have received notice from such Lender all fees and other amounts due and payable on or prior to the proposed Closing Date specifying its objection theretoRestatement Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrowers under the Loan Documents. If any LC Disbursements are outstanding as of the Restatement Effective Date, such LC Disbursements shall be repaid, together with any interest accrued thereon. The Administrative Agent shall notify the Borrowers and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Heidrick & Struggles International Inc)
Conditions of Effectiveness. The effectiveness of this This Agreement is subject to shall become effective upon satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing applicable Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);; CHAR1\1436963v5
(ii) an executed counterpart of the Guaranty;
(iii) a Revolving Note executed by the Borrower(s) each Borrower in favor of each Lender requesting a Note;
(iiiiv) such certificates of resolutions or other action and action, incumbency certificates (including specimen signatures) and/or other certificates of Responsible Officers the secretary or assistant secretary of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Authorized Officer thereof authorized to act as a Responsible an Authorized Officer in connection with the execution of this Agreement and the other Loan Documents to which such Loan Party is a partyDocuments;
(ivv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and in good standing in its jurisdiction of organization;
(vvi) a favorable opinion of Xxxxxx (I) Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxxxx LLPXxxxx, P.C., as legal counsel to the Loan Parties, Parties and (II) General Counsel to the Loan Parties addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vivii) a certificate of a Responsible Officer of the Parent Borrower Borrowers either (A) attaching copies of all consentsdocuments evidencing other necessary actions, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection approval or consents with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of respect to the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consentsactions, licenses approvals or approvals consents are so required;; and
(viiviii) a certificate signed by a Responsible Officer of the Parent Borrower Borrowers certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, provided that for the purposes of this clause (vi), any references to Credit Extensions in such Sections shall be disregarded and (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2014 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid under the Fee Letter to the LendersAgent, Arranger or the Administrative Agent and the Arrangers Lenders on or before the Closing Date shall have been paid.
(c) The receipt Agent shall have received (i) a copy, certified by a Responsible Officer of the Administrative Agent Borrowers as true and complete, of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirementsNote Purchase Agreement, in each case to be delivered by the Loan Parties not later than five Business Days prior form and substance reasonably satisfactory to the Closing Date to Agent and (ii) evidence that the extent such information Note Purchase Agreement is requested not later than ten Business Days prior to effective (or will become effective concurrently with the Closing Date).
(d) Unless waived by the Administrative Agent, the Parent Borrower Borrowers shall have paid all fees, reasonable and documented out-of-pocket expenses, charges and disbursements of Xxxxx & Xxx Xxxxx PLLC, as counsel to the Administrative Agent (directly to such counselcounsel if requested by the Agent) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings Closing Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). CHAR1\1436963v5 Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of This Amendment shall become effective (the “Amendment No. 1 Effective Date”) when the following conditions precedent:shall have been satisfied (or waived by the New Term A Lenders in the case of Section 2(a) or by the Required Lenders in the case of Section 2(b)):
(a) The In the case of all Sections of this Amendment other than Section 1(d) hereof:
(i) the Administrative Agent’s receipt of Agent receives the following, each of which shall be originals or e-mails facsimiles (in a .pdf format) or telecopies (in each case, followed promptly by originalsother electronic imaging means) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Amendment No. 1 Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Amendment No. 1 Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and Agent:
(a) a counterpart of this Amendment signed by each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that Administrative Agent, the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to Borrower and each Lender requesting an originally executed copy of this Agreement)New Term A Lender;
(iib) a Revolving Note executed certificate of the Borrower signed by a Responsible Officer of the Borrower(sBorrower in accordance with Section 2.14(b) in favor of each Lender requesting a Notethe Credit Agreement relating to the New Term A Commitments;
(iiic) copies (certified, to the extent applicable) of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches (other than for Franklin County, Ohio) or equivalent reports or searches, each of a recent date before the Amendment No. 1 Effective Date listing all effective financing statements, lien notices or comparable documents that name any Loan Party as debtor (other than a Louisiana entity) and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business;
(d) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment, the Credit Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(ive) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organizationincorporation or formation, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vf) a favorable an opinion of Xxxxxx Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxx Xxxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lenderthe New Term A Lenders, as in form and substance reasonably satisfactory to such matters concerning the Administrative Agent (which shall cover New York law and the General Corporation Law, Limited Liability Company Act and Revised Uniform Limited Partnership Act of Delaware);
(g) an opinion of local counsel to the Loan Parties and the Loan Documents as in Ohio, addressed to the Administrative Agent may and the New Term A Lenders, in form and substance reasonably requestsatisfactory to the Administrative Agent;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viih) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2012 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viiii) a certificate attesting to the Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, and its Restricted Subsidiaries on a consolidated basis before and after giving effect to the transactions contemplated by this Amendment and the incurrence of Indebtedness related thereto, from the Borrower’s chief financial officer in form and substance reasonably satisfactory to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b)Administrative Agent; and
(xj) such other assurances, certificates (but excluding insurance certificates, documents, consents ) or opinions documents as the Administrative Agent, the L/C Issuers or the Required Lenders Agent reasonably may require.
(b) Any fees required to be paid to In the Lenderscase of Section 1(d) of this Amendment, immediately after the effectiveness of Section 1(c) of this Amendment and when the Administrative Agent receives a counterpart of this Amendment signed by each of the Administrative Agent and Borrower and consents in the Arrangers on form of Exhibit A hereto (the “Consent”) or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel otherwise acceptable to the Administrative Agent signed by the Required Lenders (directly after giving effect to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative AgentSection 1(c)). Without limiting the generality of the provisions of the last paragraph of Section 9.039.03 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4.01Xxxxxxx 0, each Lender xxxx Xxxxxx that has signed this Agreement Amendment (or the Consent that is part hereof) shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Amendment No. 1 Effective Date specifying its objection theretothereto and the Required Lenders (as defined in the Credit Agreement) signatures hereto shall be binding on all Lenders.
Appears in 1 contract
Samples: Credit Agreement (Wendy's Co)
Conditions of Effectiveness. The Subject to Section 6.19, the effectiveness of this Agreement is subject to satisfaction or waiver by Administrative Agent of the following conditions precedentprecedent immediately prior to or concurrently with the making of any Loans or Letter of Credit Extensions hereunder:
(a) The Unless waived by Administrative Agent and Lenders, Administrative Agent’s receipt of the following, each of which shall be originals or e-mails facsimiles, including pdfs or similar electronic transmission (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Senior Officer of Borrower or the signing Loan Partyapplicable Guarantor (including the Target Company), each dated the Closing Date (oron, or in the case of certificates third-party certificates, dated on or as of governmental officials, a recent date before before, the Closing Date) Date and each in form and substance satisfactory to the Administrative Agent Agent, each Lender and each of the Lenderstheir legal counsel:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement)Documents;
(ii) a Revolving Note executed by the Borrower(s) in favor original counterparts of each Lender requesting a NoteSubordination Agreement, each in form and substance satisfactory to Administrative Agent;
(iii) modifications to Subordinated Debt in form and substance acceptable to Administrative Agent in its sole discretion, including necessary consents to consummate the transactions contemplated by this Agreement;
(iv) amendments to the existing UCC financing statements of the Subordinated Praesidian Agent as described in the Praesidian Subordination Agreement;
(v) amendments to the Organization Documents of the Loan Parties in form and content reasonably acceptable to Administrative Agent;
(vi) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Senior Officers of Borrower and each Loan Party, in each caseGuarantor, as the Administrative Agent may require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Senior Officer thereof authorized to act as a Responsible Senior Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a partythereof;
(ivvii) such documents and certifications evidence as the Administrative Agent and any Lender may reasonably require to evidence verify that Borrower and each Loan Party Guarantor is duly organized or formed, and is validly existing and existing, in good standing and qualified to engage in its business in Borrower’s or such Guarantor’s jurisdiction of organizationorganization and in each foreign jurisdiction in which Borrower or such Guarantor is required to be qualified, including copies of Borrower’s and each Guarantor’s Organization Documents certified by the corporate Secretary, certificates of good standing and/or qualification to engage in business and, if requested by Administrative Agent, tax clearance certificates;
(vviii) a favorable opinion Perfection Certificate signed by a Senior Officer of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to ;
(ix) a certificate signed by a Senior Officer of Borrower certifying that (1) the Administrative Agent representations and warranties made by each Lender, as to such matters concerning the Loan Parties and Party in the Loan Documents are true and correct on and as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either Closing Date (Aexcept to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date), (2) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such each Loan Party is in compliance with all the terms and the validity against such Loan Party provisions of the Loan Documents to which it is a party, and such consents, licenses no Default or Event of Default shall have occurred and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedcontinuing, (B3) that since December 31, 2015, there has been no event or circumstance since the date of the Audited Financial Statements that which has or has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
; and (viii4) a Solvency Certificate signed by pro forma calculation of the chief financial officer or the chief accounting officer Total Leverage Ratio of less than 4.50x, Senior Leverage Ratio of less than 3.00x, Adjusted EBITDA of the Parent on a Consolidated Basis of not less than $15,630,000, and Adjusted EBITDA of Borrower certifying that, after on a Consolidated Basis of not less than $19,130,000 (in each case giving effect to the transactions to occur on Target Transaction and the Closing Date (including, without limitation, all Credit Extensions to occur funding of the Term Loans on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ixx) an opinion of Kxxxxx Xxxx & Wxxxxx LLP, Mxxxxx Xxxxx & Bxxxxxx LLP, Kxxxxxx Mxxxxxxx & Kxxxxxx PLL and Bilzin Sxxxxxx Xxxxx Price & Axxxxxx LLP, each legal counsels to the Loan Parties, as to matters Administrative Agent may reasonably request, dated as of the Closing Date and otherwise in form and substance satisfactory to Administrative Agent;
(xi) Loan Parties shall have received all Governmental Authorizations and all Consents, in each case that are necessary in connection with the entry into, consummation and performance of the transactions contemplated by the Loan Documents and the Acquisition of the Target Company and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Administrative Agent. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Loan Documents and the Acquisition of the Target Company and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable Governmental Authority to take action to set aside its consent on its own motion shall have expired;
(xii) Administrative Agent and the Lenders shall have received all documentation and other information required by such institution or its bank regulatory authorities under Sanctions, Anti-Terrorism Laws, Anti-Corruption Laws and other Laws, including the USA PATRIOT Act;
(xiii) evidence, reasonably satisfactory to Administrative Agent, that Borrower has completed, or concurrently with the making of the initial extension of credit will complete, the Target Transaction in accordance with the terms of the Target Acquisition Documents (without any material amendment thereto or waiver thereunder unless consented to by Administrative Agent). Administrative Agent shall have received a copy of the Target Acquisition Agreement and all supplements, amendments, installments, documents and agreements related thereto, certified by a Senior Officer, dated the Closing Date, as correct and complete;
(xiv) evidence reasonably satisfactory to Administrative Agent that the sum of the aggregate purchase price under the Target Transaction is not in excess of $28,000,000;
(xv) evidence that at least $5,000,000 of the purchase price of the Target Company under the Target Acquisition Agreement has been or is being satisfied by the issuance of Equity Securities by Parent to the seller of the Target Company concurrent with the consummation of the Acquisition of the Target Company;
(xvi) receipt of certificates of insurance required to be maintained under Section 6.09, from insurance carriers acceptable to Administrative Agent, which certificates of insurance are in such forms and evidence such amounts of insurance coverage and deductibles acceptable to Administrative Agent pursuant to insurance policies with additional insured and lender loss payable clauses in favor of Administrative Agent and the Lenders;
(xvii) receipt of a copy of the representations and warranty insurance in favor of Borrower, from an insurance carrier acceptable to Administrative Agent, which policy of insurance is in such forms and evidences such amounts of insurance coverage and deductibles acceptable to Administrative Agent;
(xviii) the financial statements referenced Target Quality of Earnings Report, in Section 5.05(aform and substance reasonably acceptable to Administrative Agent and the Lenders in all respects;
(xix) confirmation of the satisfactory completion of each Lender’s due diligence, including satisfactory completion by Administrative Agent of results (satisfactory in form and (b)substance to Administrative Agent and Requisite Lenders) of all due diligence items requested and reviewed in connection with the Target Transaction and the Target Acquisition Agreement and related documents; and
(xxx) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders Agent reasonably may require.
(b) Any All fees (including fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date as specified in the Commitment Letter) shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent). Without limiting the generality .
(d) Each of the provisions of the last paragraph of conditions in Section 9.03, for purposes of determining compliance with the conditions specified in this 4.01 and Section 4.01, each Lender that has signed this Agreement shall be deemed to 4.02 have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretobeen satisfied.
Appears in 1 contract
Samples: Credit Agreement (Fusion Telecommunications International Inc)
Conditions of Effectiveness. The effectiveness of the Consents, this Agreement is Amendment and the making of the Term A-3 Loans are subject to the satisfaction or waiver of the following conditions precedent:precedent (the date of such satisfaction or waiver being the “Second Amendment Effective Date”):
(a) The the Administrative Agent’s receipt Agent shall have received copies of the following, each counterparts of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly this Amendment duly executed by a Responsible Officer of the signing each Loan Party, each dated the Closing Date Administrative Agent, the Required Lenders (or, as defined in the case of certificates of governmental officials, a recent date before Credit Agreement and as determined immediately prior to giving effect to this Amendment and the Closing DateTerm Loan A-3 Facility) and each in form of the Term A-3 Lenders; (b) the Administrative Agent shall have received (i) an opinion of Xxxxxx & Xxxxxxx LLP, New York counsel to the Loan Parties and substance satisfactory (ii) an opinion of Xxxxxxx Xxxxx LLP, Maryland counsel to the Loan Parties, each addressed to the Administrative Agent and each of the Lenders:
; (ic) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) Administrative Agent shall have received such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement Amendment and the other Loan Documents to which Documents; (d) the Administrative Agent shall have received copies, certified by a Responsible Officer of each Loan Party, of (i) the certificate or articles of incorporation or formation, articles of organization, or other comparable organizational instrument of such Loan Party, (ii) the by-laws or operating agreement (or the equivalent governing documents) of such Loan Party is a party;
and (iviii) all necessary resolutions or other action taken by the board of directors of such Loan Party to authorize the execution, delivery and performance of this Amendment by such Loan Party; (e) the Administrative Agent shall have received such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedvalidly existing, and is validly existing and in good standing and qualified to engage in business in its state of organization and in each jurisdiction where its ownership, lease or operation of organization;
(v) a favorable opinion properties or the conduct of Xxxxxx & Xxxxxxx LLPits business requires such qualification, counsel except to the Loan Parties, addressed extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; (f) the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) shall have received a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed executed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, as of the Second Amendment Effective Date, (i) no Default or Event of Default exists, and, immediately after giving effect to the transactions Term Loan A-3 Facility, no Default or Event of Default exists and (ii) the Specified Representations are true and correct in all material respects (or in all respects in the case of any Specified Representation qualified by materiality or Material Adverse Effect), except to occur on the Closing extent that such Specified Representations specifically refer to an earlier date, in which case they were true and correct in all material respects (or in all respects in the case of any Specified Representation qualified by materiality or Material Adverse Effect) as of such earlier date; 4
(g) the Borrower shall have provided to the Administrative Agent and the applicable Lender the documentation and other information reasonably requested in writing by the Administrative Agent or such Lender at least ten (10) Business Days prior to the Second Amendment Effective Date (that is required by regulatory authorities applicable to such Lender under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, all Credit Extensions the Patriot Act, in each case at least five (5) Business Days prior to occur on the Closing Second Amendment Effective Date); (h) to the extent that the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required Borrower shall have delivered to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirementsany Lender, in each case to be delivered the extent reasonably requested by the Loan Parties not later than five Administrative Agent or such Lender in writing at least ten (10) Business Days prior to the Closing Date Second Amendment Effective Date, a Beneficial Ownership Certification in relation to the extent such information is requested not later than ten Borrower, in each case at least five (5) Business Days prior to the Closing Second Amendment Effective Date.
; and (di) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such payment of all fees and expenses (including fees and expenses of counsel for the Administrative Agent) required to be paid by the Borrower to the Administrative Agent or any Term A-3 Lender on or prior to the proposed Closing Second Amendment Effective Date specifying its objection theretoin connection with this Amendment; provided that invoices for such fees and expenses have been presented to the Loan Parties a reasonable period of time (and in any event not less than one (1) Business Day) prior to the Second Amendment Effective Date.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness This Agreement shall become effective on and as of this Agreement is subject to satisfaction or waiver the first date (the “Restatement Effective Date”) on which all of the following conditions precedentprecedent shall have been satisfied:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals original, or e-mails mail (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that and the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Guaranty Agreement);
(ii) a Revolving Note executed by the Borrower(s) Borrower in favor of each Lender requesting a NoteNote prior to the Restatement Effective Date;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and each Loan Party is validly existing and existing, in good standing and qualified to engage in business in its jurisdiction of organizationincorporation or formation;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a favorable opinion of in-house counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vii) a favorable opinion of Xxxxxxx LLP, local counsel to the Loan Parties in Maryland, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viii) a certificate of a Responsible Officer of the Parent Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiix) a certificate signed by a Responsible Officer of the Parent Borrower certifying that (A1) that the conditions specified in Sections 4.02(aSection 4.01(d) and (b) Section 4.02 have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect satisfied and (C2) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates related to the credit facility being provided under this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) that could reasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect;
(viiix) a Solvency Certificate signed by from the chief financial officer or the chief accounting officer of the Parent Borrower Loan Parties certifying that, after giving effect to the transactions to occur on the Closing Restatement Effective Date (including, without limitation, any Credit Extension to occur on the Restatement Effective Date), the REIT and its Consolidated Subsidiaries, on a consolidated basis, are Solvent;
(xi) a duly completed Compliance Certificate as of the Restatement Effective Date (giving pro forma effect to the transactions to occur on the Restatement Effective Date, including, without limitation, all Credit Extensions to occur on the Closing Effective Date), signed by a Responsible Officer of Borrower (such certificate being referred to herein as the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b“Pro Forma Restatement Effective Date Compliance Certificate”); and
(xxii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers Agent or the Required Lenders either Bookrunner reasonably may require.
(bi) Any All fees required to be paid to the Lenders, the Administrative Agent and the Arrangers Bookrunners on or before the Closing Restatement Effective Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Restatement Effective Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction This Amendment shall become effective when, and only when, on or waiver of before January 30, 1997 the following conditions precedentAgent shall have received:
(a) The Administrative Agent’s receipt Counterparts of this Amendment executed by the Lessee and the Required Lessors, or advice satisfactory to the Agent that such Lessors have executed this Amendment;
(i) A Security Agreement (the "Security Agreement") in substantially the form of Exhibit A duly executed by the Lessee, together with a duly executed Officer's Certificate from the Lessee, certifying that the Lessee has submitted to the Illinois Motor Vehicle Authority with respect to each Vehicle subject to the Security Agreement which is titled in Illinois, such certificates, documents and fees as may be required by such Authority to perfect the security interest of the followingAgent, on behalf of the Lessors, in such Vehicles, together with, for each such Vehicle, copies of each application for vehicle title and certificate of title of a vehicle reflecting the recorded security interest of the Agent, and (ii) evidence of the completion of all other recordings and filings, including without limitation the filing of appropriately completed UCC financing statements for all Vehicles and the other Collateral subject to the Security Agreement with evidence of filing in the jurisdiction in which shall be originals or e-mails (in a .pdf format) or telecopies (the Lessee has its principal office and in each caseother jurisdiction in which any such vehicle is to be titled, followed promptly by originalswith respect to the Security Agreement that the Agent may deem necessary or desirable in order to perfect and protect the liens created thereby;
(c) unless otherwise specifiedA letter of credit, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each issued by NationsBank of Texas, N.A., for the account of the Lenders:
(i) executed counterparts Lessee and for the benefit of this Agreement (it being understood that the Loan Parties agree to deliver after Agent, on behalf of the Closing Date originals sufficient Lessors, in number for distribution to each Lender requesting an originally executed copy of this Agreement)a face amount not less than the maximum Rent payable under the Lease in any quarter;
(iid) a Revolving Note executed by Certified resolutions of the Borrower(s) in favor Board of each Lender requesting a NoteDirectors of the Lessee approving this Amendment, the Security Agreement and the transactions contemplated hereby and thereby together with an incumbency certificate with respect to the officers of the Lessee executing this Amendment and the Security Agreement;
(iiie) such certificates Opinions of resolutions or other action counsel to the Lessee in substantially the forms of Exhibits X-0, X-0 and incumbency certificates of Responsible Officers of each Loan Party, in each case, as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a partyB-3;
(ivf) such documents An amendment fee as provided in a letter agreement dated as of January 23, 1997 between the Agent and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedConsolidated Freightways, and is validly existing and in good standing in its jurisdiction of organization;Inc.; and
(vg) a favorable opinion of Xxxxxx & Xxxxxxx LLPSuch other approvals, counsel to opinions or documents as any Lessor through the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of . The Agent shall notify the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party Lessee and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that Lessors after the conditions specified in Sections 4.02(a) and (b) set forth above have been satisfied, (B) that there has been no event satisfied or circumstance since waived and the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding this Amendment is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may requireeffective.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Participation Agreement (Consolidated Freightways Corp)
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedentTHIS AMENDMENT SHALL BE DEEMED EFFECTIVE AS OF THE FIRST DATE (SUCH DATE BEING REFERRED TO HEREIN AS THE “SECOND AMENDMENT EFFECTIVE DATE”) ON WHICH ALL OF THE FOLLOWING CONDITIONS PRECEDENT HAVE BEEN SATISFIED OR WAIVED IN WRITING:
(a) The the Administrative Agent’s receipt of the following, in such number as reasonably requested by the Administrative Agent,, each of which shall be originals original, or e-mails mail (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Second Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Second Amendment Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(iI) executed counterparts of this Agreement (it being understood that Amendment from each of the Loan Parties agree to deliver after Parties, the Closing Date originals sufficient in number for distribution to Administrative Agent and each Lender requesting an originally executed copy of this Agreement)the Lenders;
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) i. such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(ivII) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and each Loan Party is validly existing and existing, in good standing and qualified to engage in business in (A) its jurisdiction of organizationorganization and (B) each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) i. a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such each Loan Party Party, and the validity against such each Loan Party Party, of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;; and
(viiIII) a certificate signed by a Responsible Officer of the Parent Borrower certifying that (A1) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1A) relates to challenges the validity or enforceability of this Agreement or Amendment, the Existing Credit Agreement, the Amended Credit Agreement, any other Loan Document, Document or any of the transactions contemplated hereby or thereby, or otherwise purports to restrict or prohibit the performance of all or any portion of this Amendment, the Existing Credit Agreement, the Amended Credit Agreement, any other Loan Document or any of the transactions contemplated hereby or thereby or (B) could reasonably be expected to have a Material Adverse Effect, (2) since December 31, 2021, there has not occurred any event or condition that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) Effect and (b); and
(x3) such other assurances, certificates, documents, consents no Default or opinions as Event of Default has occurred and is continuing under the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may requireExisting Credit Agreement.
(ba) Any fees required to be paid At least five Business Days prior to the LendersSecond Amendment Effective Date, the Administrative Agent and the Arrangers on or before the Closing Date Lenders shall have been paid.
(c) The receipt received documentation and other information with respect to each of the Loan Parties required by the Administrative Agent of all necessary information in connection with the PATRIOT Act, regulatory authorities under applicable “know your customer” requirementsand anti-money laundering rules and regulations, including, without limitation, the Beneficial Ownership Regulation USA Patriot Act (including a Beneficial Ownership CertificationTitle III of Pub. L. 107 56 (signed into law October 26, if requested2001), ) and other customary requirements, in each case to be delivered regulations implemented by the Loan Parties not later than five Business Days prior to US Treasury’s Financial Crimes Enforcement Network under the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing DateBank Secrecy Act.
(d) i. Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced at least two Business Days (which invoice may be in summary form) prior to or on the Closing Second Amendment Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.039.03 of the Amended Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4.01, 3 each Lender that has signed this Agreement Amendment shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoLender.
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Conditions of Effectiveness. The effectiveness of this This Agreement is subject to shall be effective upon satisfaction or waiver of the following conditions precedentprecedent on or before February 28, 2006:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts a counterpart of this Agreement (it being understood that executed by the Loan Parties agree to deliver after the Closing Date originals Borrower and each Lender sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and the Borrower;
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, the Borrower as the Administrative Agent may require require, in form and substance satisfactory to the Administrative Agent, evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party the Borrower is a party;
(iviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party Restricted Person is duly organized or formed, and that each of the Borrower and each Restricted Person is validly existing and existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of Winston & Xxxxxx LLP, counsel to the Restricted Persons, and a favorable opinion of Xxxxxx & Xxxxxxx LLPXxxxxx L.L.P., local counsel to the Loan PartiesRestricted Persons for the State of Texas, in each case in form and substance satisfactory to the Administrative Agent, each addressed to the Administrative Agent and each Lender, as ;
(v) evidence that all insurance required to such matters concerning the Loan Parties and be maintained pursuant to the Loan Documents as the Administrative Agent may reasonably requesthas been obtained and is in effect;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Initial Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b)Statements; and
(xvii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers LC Issuer or the Required Majority Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The Each of the effectiveness of this the amendments to the Existing Credit Agreement is set forth herein and the obligations of the Incremental Term Lenders to make Incremental Term Loans are subject (at the time of or substantially concurrently with the making of such Incremental Term Loans) to the satisfaction (or waiver by the Required Lenders (immediately before giving effect to the incurrence of the Incremental Term Loans) or a majority of the Incremental Term Lenders party hereto, as applicable) of the following conditions precedent:(the date of such satisfaction or waiver, the “Effective Date”):
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received (i) from Lenders constituting the Required Lenders immediately before giving effect to the incurrence of the followingIncremental Term Loans, (ii) from each Incremental Term Lender and (iii) from each of which shall be originals or e-mails Holdings, the Borrower and the Subsidiary Loan Parties, either (in x) a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer counterpart of the signing Loan Party, each dated the Closing Date this Agreement signed on behalf of such party (or, in the case of certificates of governmental officialssuch Lenders, a recent date before the Closing DateConsent Form) and each in form and substance or (y) written evidence reasonably satisfactory to the Administrative Agent and each (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a certificate of the LendersSecretary or Assistant Secretary or similar officer of each Loan Party dated the Effective Date:
(i) executed counterparts of this Agreement either (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed x) attaching a copy of this Agreementthe certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization (to the extent such concept or a similar concept exists under the laws of such jurisdiction and such certificates are available on a timely basis from such jurisdiction) or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying there have been no changes to the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents of such Loan Party since August 30, 2019 (the “Prior Amendment Closing Date”);,
(ii) attaching a Revolving Note executed by certificate as to the Borrower(sgood standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction and such certificates are available on a timely basis from such jurisdiction) in favor of each Lender requesting such Loan Party as of a Note;recent date from such Secretary of State (or other similar official),
(iii) either (x) certifying that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such certificates Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (iv) below or (y) with respect to any Loan Party other than the Borrower or Holdings, certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party since the Prior Amendment Closing Date,
(iv) certifying that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or other action equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and incumbency certificates performance of Responsible Officers of each the Loan Party, in each case, as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer Documents executed in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as party and, in the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedcase of the Borrower, the borrowings hereunder, and is validly existing that such resolutions have not been modified, rescinded or amended and are in good standing in its jurisdiction of organization;full force and effect on the Effective Date,
(v) either (x) certifying as to the incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party or (y) with respect to any Loan Party other than Borrower or Holdings, certifying that there have been no changes to the incumbency of such Loan Party since the Prior Amendment Closing Date, and
(vi) certifying as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(c) The Administrative Agent shall have received, on behalf of itself and the Lenders, a favorable written opinion of Xxxxxx Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxx LLPXxxxxxxx LLP (A) dated the Effective Date, counsel to the Loan Parties, (B) addressed to the Administrative Agent and each Lender, as the Lenders on the Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters concerning the Loan Parties and the Loan Documents relating to this Agreement as the Administrative Agent may shall reasonably request;.
(vid) a certificate of a Responsible Officer of The Administrative Agent shall have received all fees payable thereto, on or prior to the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending orEffective Date and, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that extent invoiced at least three (13) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Effective Date.
, reimbursement or payment of all reasonable and documented out-of-pocket expenses (d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all including reasonable fees, charges and disbursements of counsel Xxxxxx Xxxxxx & Xxxxxxx llp) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the Administrative Agent Effective Date (directly to such counsel) to which amounts may be offset against the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality proceeds of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Loans made hereunder).
(e) The Administrative Agent shall have received notice from such Lender on or prior to three (3) Business Days prior to the proposed Closing Effective Date specifying its objection theretoall documentation and other information of the type set forth in Section 3.25(a) of the Existing Credit Agreement, to the extent such information has been requested by the Administrative Agent not less than five (5) Business Days prior to the Effective Date.
(f) The Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower dated as of the Effective Date to the effect set forth in Sections 4(b) and 4(d) hereof.
(g) Each Lender party hereto that shall have requested a Beneficial Ownership Certificate not less than five (5) Business Days prior to the Effective Date shall have received such certificate at least three (3) Business Days prior to the Effective Date (or such lesser time acceptable to such Lender).
(h) The Administrative Agent shall have received, for the account of each Consenting Lender (other than a Defaulting Lender) holding outstanding Term Loans as of the Effective Date immediately prior to the effectiveness of this Agreement and the incurrence of the Incremental Term Loans, a fee equal to 1.00% of the aggregate outstanding principal amount of the Term Loans held by such Consenting Lender on the Effective Date immediately prior to the effectiveness of this Agreement and the incurrence of the Incremental Term Loans.
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (PlayAGS, Inc.)
Conditions of Effectiveness. The effectiveness amendments to the Credit Agreement set forth in Section 2 of this Agreement is subject to satisfaction or waiver of Amendment shall be effective on the following conditions precedentAmendment Effective Date, provided that the Administrative Agent shall have received the following:
(a) The Administrative Agent’s receipt a counterpart of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly this Amendment executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
parties hereto (i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreementwhich may be by telecopy transmission);
(iib) to the extent requested by any Lender, a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Notemaximum principal amount equal to such Lender’s Commitment;
(iiic) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers officers of each Loan Party, in each case, as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to establish the identities of and verify the authority and capacity of each officer thereof authorized to act in connection with this Amendment;
(d) copies of any amendments to the Organization Documents of Loan Parties made since the Closing Date, certified by an appropriate officer of the Loan Parties, or certificate(s) stating that no such amendments have been made;
(e) such evidence as the Administrative Agent may reasonably require to verify that each Loan Party and the General Partner is duly organized or formed, and is validly existing and existing, in good standing in its the jurisdiction of its organization;
(vf) a favorable opinion certificate signed by an a Responsible Officer of Xxxxxx & Xxxxxxx LLPthe Borrower certifying (A) that the representations and warranties contained in Article V of the Credit Agreement are true and correct in all respects on and as of such date, counsel (B) no Default or Event of Default has occurred and is continuing as of such date, (C) since December 31, 2004 there has occurred no material adverse change in the business, assets, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole, or of any Borrower Affiliate, and (D) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental authority by or against the Borrower or any Borrower Affiliate, or any of their respective properties, that (x) could reasonably be expected to materially and adversely affect the Borrower, any Borrower Affiliate, or any Guarantor, or (y) seeks to affect any transaction contemplated hereby or the ability of the Borrower or any Guarantor to perform its obligations under the Loan PartiesDocuments;
(g) receipt of audited financial statements of the MLP as of December 31, addressed to 2004, unaudited financial statements of the Administrative Agent MLP as of September 30, 2005, and each Lender, as to such matters concerning the Loan Parties and the Loan Documents other financial information as the Administrative Agent may reasonably request;
(vih) a certificate of a Responsible Officer of the Parent Borrower either opinions from (Ai) attaching copies of all consentsBxxxxxx Xxxxx Xxxxxxx & Ixxxxxxxx, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the executionLLP, delivery and performance by such counsel to each Loan Party and the validity against such General Partner, substantially in the form of Exhibit F-1 of the Credit Agreement, (ii) Bxxxx Xxxxx, Esq., counsel to each Loan Party and the General Partner, substantially in the form of Exhibit F-2 of the Loan Documents to which it is a partyCredit Agreement, and such consents(iii) Vxxxxx & Exxxxx LLP, licenses and approvals shall be special Texas counsel to the Borrower, substantially in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredthe form of Exhibit F-3 of the Credit Agreement;
(viii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) all fees and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could expenses required to be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed paid by the chief financial officer or Borrower concurrently with the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Amendment Effective Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(xj) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers Issuers, or the Required Lenders reasonably may requirerequire and timely request.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness obligations of this Agreement is subject the Lenders to satisfaction make Loans (or waiver to purchase participations in Swingline Loans) and of the Issuing Bank to issue Letters of Credit hereunder shall become effective on the date on which each of the following conditions precedent:is satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the following, each Administrative Agent (which may include telecopy or other electronic transmission of which a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall be originals or e-mails have received reasonably satisfactory written opinions (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of addressed to the signing Loan Party, each Administrative Agent and the Lenders and dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) of New York counsel for the Credit Parties, covering such matters as the Required Lenders shall reasonably request. The Credit Parties hereby request such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and each certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Credit Parties, the authorization of the Transactions and any other legal matters relating to the Credit Parties, this Agreement or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President, a Vice President or a Financial Officer of each of the LendersCredit Party, stating that:
(i) executed counterparts the representations and warranties contained in Article III of this Agreement (it being understood that the Loan Parties agree to deliver after are correct on and as of the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);Date; and
(ii) no event has occurred and is continuing that constitutes a Revolving Note executed Default.
(e) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out‑of‑pocket expenses required to be reimbursed or paid by the Borrower(s) in favor of each Lender requesting a Note;Borrower hereunder.
(iiif) such certificates of resolutions or other action All governmental and incumbency certificates of Responsible Officers of each Loan Party, in each case, as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and material third party approvals (other than the resolutions referenced in clause (iii) above) required necessary in connection with the execution, delivery and performance by such Loan Party of this Agreement shall have been obtained and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the . The Administrative Agent shall notify the Borrower and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent Lenders of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus and such additional amounts of such fees, charges notice shall be conclusive and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)binding. Without limiting the generality of the provisions of the last third paragraph of Section 9.03Article IX, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required thereunder hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (H&r Block Inc)
Conditions of Effectiveness. The effectiveness of this Agreement Amendment (the “Amendment No. 1 Effective Date”) is subject to satisfaction or waiver of the following conditions precedentprecedent that:
(a) The Administrative Agent’s receipt Agent shall have received counterparts of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly this Amendment duly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date Revolving Lenders (orincluding the New Revolving Lenders), in the case of certificates of governmental officialsDeparting Lenders, a recent date before the Closing Date) Required Lenders and each in form and substance satisfactory to the Administrative Agent and each the Consent and Reaffirmation attached hereto duly executed by the Subsidiary Guarantors.
(b) The Administrative Agent shall have received a certificate of the Lenders:
Secretary or an Assistant Secretary of the Borrower and each Subsidiary Guarantor (collectively, the “Credit Parties”) certifying (i) executed counterparts that there have been no changes in the Articles or Certificate of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy Incorporation, Certificate of this Agreement);
(ii) Formation or other charter document of such Credit Party, as attached thereto and as certified as of a Revolving Note executed recent date by the Borrower(ssecretary of state (or the equivalent thereof) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each Loan Party, in each case, as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
, if applicable, since the date of the certification thereof by such secretary of state (vor equivalent thereof), if applicable, (ii) a favorable opinion of Xxxxxx & Xxxxxxx LLPthe By-Laws, counsel to the Loan PartiesOperating Agreement, addressed to the Administrative Agent and each Lenderor other applicable organizational document, as to attached thereto, of such matters concerning Credit Party as in effect on the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate date of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consentssuch certification, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with resolutions of the Board of Directors, Board of Managers, or other governing body of such Credit Party authorizing the execution, delivery and performance of each Credit Document to which it is a party, including the Credit Agreement as amended by such Loan Party this Amendment, (iv) the names and the validity against such Loan Party true signatures of the Loan incumbent officers of such Credit Party authorized to sign the Credit Documents to which it is a party, and such consentsand, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer the case of the Parent Borrower certifying each of the Borrower, authorized to request borrowings under the Credit Agreement (A) that the conditions specified in Sections 4.02(aas amended by this Amendment) and (bv) have been satisfied, Good Standing Certificates (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer equivalent thereof) for each Credit Party from its respective jurisdiction of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paidorganization.
(c) The receipt by Administrative Agent shall have received such instruments and documents as the Administrative Agents shall reasonably requested, including a written opinion of the Borrower’s counsel, Xxxxxx & Xxxxxx LLP, addressed to the Lenders covering such matters relating to the Borrower and the Subsidiary Guarantors, the Loan Documents or the transactions contemplated thereby as the Administrative Agent of all necessary information in connection with shall request, which opinion the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case Borrower hereby requests such counsel to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Datedeliver.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the The Administrative Agent shall have received notice from such Lender all fees and other amounts due and payable on or prior to the proposed Closing Date specifying its objection theretoAmendment No. 1 Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including fees and expenses of counsel for the Administrative Agent) required to be reimbursed or paid by the Borrower in connection with this Amendment.
Appears in 1 contract
Samples: Credit Agreement (Inergy L P)
Conditions of Effectiveness. The effectiveness This Agreement shall become effective on and as of this Agreement is subject to satisfaction or waiver the first date (the “Restatement Effective Date”) on which all of the following conditions precedentprecedent shall have been satisfied:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals original, or e-mails mail (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that and the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement)Guaranty;
(ii) a Revolving Note executed by the Borrower(s) Borrower in favor of each Lender requesting a NoteNote prior to the Restatement Effective Date;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and each Loan Party is validly existing and existing, in good standing and qualified to engage in business in its jurisdiction of organizationincorporation or formation;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a favorable opinion of in-house counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vii) a favorable opinion of Xxxxxxx LLP, local counsel to the Loan Parties in Maryland, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viii) a certificate of a Responsible Officer of the Parent Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiix) a certificate signed by a Responsible Officer of the Parent Borrower certifying that (A1) that the conditions specified in Sections 4.02(aSection 4.01(d) and (b) Section 4.02 have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect satisfied and (C2) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates related to the credit facility being provided under this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) that could reasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect;
(viiix) a Solvency Certificate signed by from the chief financial officer or the chief accounting officer of the Parent Borrower Loan Parties certifying that, after giving effect to the transactions to occur on the Closing Restatement Effective Date (including, without limitation, any Credit Extension to occur on the Restatement Effective Date), the REIT and its Consolidated Subsidiaries, on a consolidated basis, are Solvent;
(xi) a duly completed Compliance Certificate as of the Restatement Effective Date (giving pro forma effect to the transactions to occur on the Restatement Effective Date, including, without limitation, all Credit Extensions to occur on the Closing Effective Date), signed by a Responsible Officer of Borrower (such certificate being referred to herein as the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b“Pro Forma Restatement Effective Date Compliance Certificate”); and
(xxii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers Agent or the Required Lenders either Bookrunner reasonably may require.
(bi) Any All fees required to be paid to the Lenders, the Administrative Agent and the Arrangers Bookrunners on or before the Closing Restatement Effective Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Restatement Effective Date shall have been paid.
(c) The receipt by All due diligence with respect to the REIT, the Borrower and their respective Subsidiaries, in scope and determination satisfactory to the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirementsAgent, the Beneficial Ownership Regulation (including a Beneficial Ownership CertificationBookrunners and the Lenders in their sole discretion, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Dateshall have been completed.
(d) There shall not have occurred since September 30, 2017 any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.
(e) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced at least two Business Days prior to or on the Closing first Business Day prior to the Restatement Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(f) All accrued and unpaid interest and fees with respect to the Revolving Credit Commitments and Loans under the Existing Credit Agreement as of (and immediately prior to giving effect to) the Restatement Effective Date shall have been, or concurrently with the extensions of credit being made hereunder on the Restatement Effective Date will be, paid in full.
(g) At least five business days prior to the Restatement Effective Date, the Administrative Agent and the Lenders shall have received documentation and other information with respect to the Borrower and each of the Guarantors that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act (Title III of Pub. L. 107 56 (signed into law October 26, 2001)) and regulations implemented by the US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Restatement Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver This Sixth Amendment will become effective on the date on which each of the following conditions precedent:precedent are satisfied or waived (the “Sixth Amendment Effective Date”):
(a) The Administrative Agent shall have received from PEI, the Borrower, the General Partner, the Parent, each other Obligor and the Majority Lenders, counterparts (in such number as may be requested by the Administrative Agent’s receipt ) of this Sixth Amendment signed on behalf of such Person.
(b) The Administrative Agent and the Lenders shall have received all fees and other amounts due and payable on or prior to the Sixth Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower pursuant to the Credit Agreement (including, to the extent invoiced on or prior to the Sixth Amendment Effective Date, the fees and expenses of Xxxx Xxxxxxxx LLP, counsel to the Administrative Agent).
(c) No Default or Event of Default shall have occurred and be continuing as of the followingSixth Amendment Effective Date.
(d) The Administrative Agent shall have received a certificate of the Secretary, each of which shall be originals an Assistant Secretary or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case PEI setting forth resolutions of certificates its board of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory directors with respect to the Administrative Agent authorization of PEI to execute and each of the Lenders:
(i) executed counterparts of deliver this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each Loan Party, in each case, as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement Sixth Amendment and the other Loan Documents to which such Loan Party it is a party;
party and to enter into the transactions contemplated in those documents, the officers of PEI (ivi) who are authorized to sign such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it PEI is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) party and (bii) have been satisfiedwho will, (B) until replaced by another officer or officers duly authorized for that there has been no event or circumstance since purpose, act as its representative for the date purposes of signing documents and giving notices and other communications in connection with this Sixth Amendment, the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect Credit Agreement and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or and thereby, specimen signatures of such authorized officers, and the articles or certificate of incorporation and by-laws or other applicable organizational documents of PEI (2) could reasonably be expected to havein each case, either individually or in the aggregatetogether with all amendments thereto, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Dateif any), the Loan Parties certified as being true and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the complete. The Administrative Agent and the Arrangers Lenders may conclusively rely on or before such certificate until the Closing Date shall have been paidAdministrative Agent receives notice in writing from the Borrower to the contrary.
(ce) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior certificates of the appropriate State agencies with respect to the proposed Closing Date specifying existence, qualification and good standing of PEI.
(f) The Administrative Agent shall have received such other documents as the Administrative Agent or its objection theretospecial counsel may reasonably require. The Administrative Agent is hereby authorized and directed to declare this Sixth Amendment to be effective when it has received documents confirming compliance with the conditions set forth in this Section 4 or the waiver of such conditions as agreed to by the Majority Lenders. Such declaration shall be final, conclusive and binding upon all parties to the Credit Agreement for all purposes.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness This Agreement shall become effective on and as of this Agreement is subject to satisfaction or waiver the first date (the “Closing Date”) on which all of the following conditions precedentprecedent shall have been satisfied:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals original, or e-mails mail (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that and the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement)Guaranty;
(ii) a Revolving Term Note executed by the Borrower(s) Borrower in favor of each Lender requesting a NoteTerm Note prior to the Closing Date;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and each Loan Party is validly existing and existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a favorable opinion of in-house counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vii) a favorable opinion of Xxxxxxx LLP, local counsel to the Loan Parties in Maryland, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viii) a certificate of a Responsible Officer of the Parent Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiix) a certificate signed by a Responsible Officer of the Parent Borrower certifying that (A1) that the conditions specified in Sections 4.02(athis Section 4.01 have been satisfied (other than those conditions contingent upon the satisfaction of the Administrative Agent and/or the Lenders with respect to certain items received by them under this Section 4.01) and (b2) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates related to the credit facility being provided under this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) that could reasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect;
(viiix) a Solvency Certificate signed by from the chief financial officer or the chief accounting officer of the Parent Borrower Loan Parties certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all any Credit Extensions Extension to occur on the Closing Date), the Loan Parties REIT and their its Consolidated Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ixxi) a duly completed Compliance Certificate as of the financial statements referenced in Section 5.05(a) and Closing Date (bgiving pro forma effect to the transactions to occur on the Closing Date, including, without limitation, all Credit Extensions to occur on the Effective Date), signed by a Responsible Officer of Borrower (such certificate being referred to herein as the “Pro Forma Closing Date Compliance Certificate”); and
(xxii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers Agent or the Required Lenders any Arranger reasonably may require.
(bi) Any All fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) The receipt by All due diligence with respect to the REIT, the Borrower and their respective Subsidiaries, in scope and determination satisfactory to the Administrative Agent of all necessary information Agent, Arrangers and the Lenders in connection with the PATRIOT Acttheir sole discretion, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Dateshall have been completed.
(d) There shall not have occurred since December 31, 2015 any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.
(e) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) (limited to the fees and expenses of one primary counsel, one specialty counsel in each specialty and one local counsel in each local jurisdiction) to the extent invoiced at least two Business Days prior to or on the first Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction (or waiver waiver) of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails originals, email (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals Agreement, sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and the Borrower;
(ii) a Revolving Note executed by the Borrower(s) Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in (A) its jurisdiction of organizationorganization and (B) each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable customary opinion of Xxxxxx (i) Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel to the Loan Parties and (ii) Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a duly executed Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying thatCertificate;
(ix) a duly completed Compliance Certificate, after giving pro forma effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ixx) the financial statements referenced in Section 5.05(a) and (b); and
(xxi) such other assurances, certificates, customary documents, consents instruments, agreements or opinions material information and such additional assurances or certifications with respect to satisfaction of the conditions precedent in Article IV as the Administrative Agent, the any L/C Issuers Issuer, any Swing Line Lender or the Required Lenders reasonably may require.
(b) At least five Business Days prior to the Closing Date, the Administrative Agent and each Lender shall have received documentation and other information with respect to each of the Loan Parties requested at least ten Business Days prior to the Closing Date, that is required, in the Administrative Agent’s or such Lender’s judgment, by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) and regulations implemented by the US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act.
(c) Any fees required to be paid to the Lenders, the Administrative Agent (for its own account or the account of the Lenders) and the Arrangers Bookrunners on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced (which invoice may be in summary form) at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this This Agreement is subject to satisfaction or waiver of shall become effective when the following conditions precedentprecedent have been satisfied or waived in accordance with Section 10.01:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement (it being understood that executed by the Loan Parties agree Borrower, the Administrative Agent, the LC Issuer, the Swingline Lender and the Lenders listed on the signature pages to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Note executed by the Borrower(s) Borrower in favor of each Lender requesting a Note;
(iii) the Pledge and Security Agreement executed by the parties thereto and all UCC financing statements and other documents or instruments necessary or advisable to perfect the security interests created by the Pledge and Security Agreement;
(iv) [Intentionally Omitted];
(v) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, the Borrower as the Administrative Agent may require require, in form and substance satisfactory to the Administrative Agent, evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party the Borrower is a party;
(ivvi) such documents and certifications as the Administrative Agent may reasonably require require, in form and substance satisfactory to the Administrative Agent, to evidence that each Loan Party Restricted Person is duly organized or formed, and that each Restricted Person is validly existing and existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vvii) a favorable opinion of Xxxxxx each of (i) Xxxxx Lord Xxxxxxx & Xxxxxxx LLPL.L.P., counsel to the Loan PartiesRestricted Persons, and (ii) the General Counsel of ETP LLC, in each case in form and substance satisfactory to the Administrative Agent, addressed to the Administrative Agent and each Lender, as ; the Borrower hereby requests such counsel to deliver such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestopinion;
(viviii) a certificate of a Responsible Officer of the Parent Borrower each Restricted Person either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party Restricted Person and the validity against such Loan Party Restricted Person of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiix) a certificate signed by a Responsible Officer of the Parent Borrower certifying that (A) that the conditions specified in Sections 4.02(a) and (b4.02(b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Initial Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation Default or proceeding Event of Default has occurred and is pending or, to continuing under the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse EffectExisting Credit Agreement;
(viiix) a Solvency duly completed pro forma Compliance Certificate signed by the chief financial officer or the chief accounting officer as of the Parent last day of the Fiscal Quarter of the Borrower certifying that, after giving effect most recently ended prior to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), signed by a Responsible Officer of the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are SolventBorrower;
(ixxi) evidence that all insurance required to be maintained pursuant to Section 6.08 has been obtained and is in effect;
(xii) [Intentionally Omitted];
(xiii) Evidence that (A) the financial statements referenced in Section 5.05(agross cash proceeds from the issuance of the Senior Notes on or before the date of this Agreement are at least $1,800,000,000, (B) such gross cash proceeds have been applied to repay all loans and other obligations under the Existing Credit Agreement, (C) the commitments to make loans under the Existing Credit Agreement have been terminated, (D) all Liens associated with the Existing Credit Agreement have been released or terminated contemporaneously with the making of such payments and the termination of such commitments, and (b); andE) arrangements satisfactory to the Administrative Agent have been made for the recording and filing of such releases;
(xxiv) the Administrative Agent shall have received a Form U-1 with respect to each Lender that is a bank and a Form G-3 with respect to each Lender that is not a bank, each duly completed and executed by the Borrower;
(xv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers LC Issuer or the Required Majority Lenders reasonably may require.
(b) Any fees required to be paid to by the Lenders, the Administrative Agent and the Arrangers Borrower on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(d) The Lenders shall have received, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01Section, each Lender that has signed executed and delivered this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction (or waiver in accordance with Section 10.02) of the following conditions precedent:
(a) The Administrative Agent’s (or its counsel’s) receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that and the Loan Parties agree First Amendment to deliver after the Closing Date originals Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and the Borrower;
(ii) a Revolving Note executed by the Borrower(s) Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity 25516427 -58- of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent or its counsel may reasonably require relating to evidence that the organization, existence and good standing of each Loan Party is duly organized or formedand the General Partner and any other legal matters relating to the Borrower, each other Loan Party, the General Partner, this Agreement and is validly existing the other Loan Documents, all in form and in good standing in substance reasonably satisfactory to the Administrative Agent and its jurisdiction of organizationcounsel;
(v) a favorable opinion of Xxxxxx any general counsel, associate general counsel or corporate secretary of the General Partner or a wholly owned subsidiary of Pioneer acting as counsel for the Borrower, and of Txxxxxxx & Xxxxxxx Kxxxxx LLP, outside counsel to for the Loan Parties, addressed to the Administrative Agent and each Lender, as to covering those matters described in Exhibit G and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower General Partner certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by evidence that all insurance required to be maintained on behalf of and for the chief financial officer or the chief accounting officer benefit of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties pursuant to the Loan Documents has been obtained and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;is in effect; and
(ix) a certificate dated as of the financial statements referenced Closing Date substantially in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, form of Exhibit H hereto duly executed by the L/C Issuers or the Required Lenders reasonably may requireGeneral Partner.
(b) Any The Administrative Agent, Lenders and Co-Arrangers shall have received all fees required to be paid to the Lenders, the Administrative Agent and the Arrangers other amounts due and payable on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived , including, to the extent invoiced prior to or on the Closing Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Administrative Agent, the Parent Borrower shall have paid hereunder (including all such fees, charges and disbursements of counsel to the Administrative Agent (Agent, paid directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred counsel if requested by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(c) The Closing Date shall have occurred on or before March 29, 2012. 25516427 -59-
(d) There shall not have occurred a material adverse change in the operations, business, assets, or financial condition of the Borrower and the Restricted Subsidiaries, taken as a whole, since December 31, 2011. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Pioneer Southwest Energy Partners L.P.)
Conditions of Effectiveness. The effectiveness This Agreement will become effective upon, and the obligation of each Lender to enter into this Agreement is subject to to, satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals Agreement, sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and the Borrower;
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and each other Loan Party is validly existing and existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxxx & Xxxxxxx McGuireWoods LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably requestrequest and such other opinions from FCC counsel or other counsel as deemed advisable by the Administrative Agent;
(viv) a certificate of a Responsible Officer of the Parent Borrower each Loan Party either (A) attaching copies of all consents, licenses Licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a partyparty (including any required consents under the Existing Synthetic Leases, the Senior Note Documents and the Revolving Credit Documents), and such consents, licenses Licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses Licenses or approvals are so required;
(viib) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that (x) the conditions specified representations and warranties of the Borrower and each other Loan Party contained in Sections 4.02(a) Article V or any other Loan Document, or which are contained in any document furnished on the Closing Date under or in connection herewith or therewith, shall be true and correct on and as of the Closing Date; and (by) have been satisfied, no Default shall exist; and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any Effect; • a certificate signed by a Responsible Officer of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in Borrower attaching true and complete copies as of the aggregate, a Material Adverse EffectClosing Date of the Existing Synthetic Leases;
(viiii) a Solvency duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 25, 2006, signed by the chief financial officer or the chief accounting officer a Responsible Officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b)Borrower; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers Agent or the Required Lenders reasonably may require.
(bc) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(e) There shall not have occurred a material adverse change since December 25, 2005 in the business, assets, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole or the facts and information regarding such entities as represented to date. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Media General Inc)
Conditions of Effectiveness. The effectiveness of this the amendment and restatement of the Existing Credit Agreement is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:Agent: ActiveUS 170689984v.4
(i) executed counterparts of this Agreement (it being understood that and the Loan Parties agree to deliver after the Closing Date originals Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and the Borrowers;
(ii) a Revolving Note Notes executed by the Borrower(s) Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other equivalent action and incumbency certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require reasonably request evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require request to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing and qualified to engage in business in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) other than as publicly disclosed prior to October 29, 2018, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and Effect; (C) that the current Debt Ratings and (D) that, except as set forth on Schedule 5.06(b), there are no actionactions, suitsuits, investigation investigations or proceeding is proceedings pending or, to the knowledge of any Loan Partythe Company, threatened in any court or before any arbitrator or Governmental Authority governmental authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could would reasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(xvi) such other assurancesopinions of (i) Tarrant Sibley, certificatesEsq., documentsSenior Vice President and Deputy General Counsel of the Company, consents or opinions as substantially in the Administrative Agentform of Exhibit I-1 hereto, (ii) Xxxxx Xxxxxxxxx, Vice President, European Legal General Secretary, Hasbro SA, substantially in the L/C Issuers or form of Exhibit I-2 hereto and (iii) Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, special New York counsel to the Required Lenders reasonably may requireLoan Parties, substantially in the form of Exhibit I-3 hereto.
(b) Any All accrued and invoiced fees required to be paid to and expenses of the LendersLead Arrangers, the Administrative Agent and the Arrangers Lenders (including the fees and expenses of counsel for the Administrative Agent) required to be paid on or before the Closing Date shall have been paid.
(c) The receipt All obligations under the Existing Credit Agreement (other than obligations in respect of Existing Letters of Credit which shall be deemed to be Letters of Credit issued under this Agreement pursuant to Section 10.21) shall have been paid in full and all commitments thereunder of lenders party thereto who are not parties to this Agreement shall have been terminated and all commitments thereunder of the Lenders party to this Agreement shall be evidenced only by this Agreement.
(i) Upon the Administrative Agent reasonable request of all necessary any Lender made at least 10 business days prior to the Closing Date, the Borrowers shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with the PATRIOT Act, applicable “know your customer” requirementsand anti-money-laundering rules and ActiveUS 170689984v.4 regulations, including, without limitation, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirementsPATRIOT Act, in each case to be delivered by the Loan Parties not later than five Business Days at least 5 business days prior to the Closing Date to the extent such information is requested not later than ten Business Days and (ii) at least 5 business days prior to the Closing Date.
(d) Unless waived by , any Borrower that qualifies as a “legal entity customer” under the Administrative Agent, the Parent Borrower Beneficial Ownership Regulation shall have paid all feesdelivered, charges and disbursements of counsel to the Administrative Agent (directly each Lender that so requests, a Beneficial Ownership Certification in relation to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)Borrower. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness This Amended and Restated Credit Agreement shall become effective on and as of this Agreement is subject to satisfaction or waiver the first date (the “Restatement Effective Date”) on which all of the following conditions precedentprecedent shall have been satisfied:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals Agreement, sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and the Borrower;
(ii) a Revolving Note executed by the Borrower(s) Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in (A) its jurisdiction of organizationorganization and (B) each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx Hunton & Xxxxxxx Xxxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying that (A) that the conditions specified in Sections 4.02(a) and (b) this Section 4.01 have been satisfiedsatisfied (other than those conditions contingent upon the satisfaction of the Administrative Agent and/or the Lenders with respect to certain items received by them under this Section 4.01), (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2012 that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and Effect, (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could would reasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.,
Appears in 1 contract
Samples: Credit Agreement (American Residential Properties, Inc.)
Conditions of Effectiveness. The effectiveness This Amendment shall become effective as of this Agreement is subject to satisfaction or waiver the first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedentprecedent shall have been satisfied:
(a) The Administrative Agent’s receipt Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent (x) counterparts of this Amendment executed by the Borrower, the Administrative Agent and those Lenders whose consent is required under Section 9.01 of the followingExisting Credit Agreement or, as to any of such Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, and (y) the consent attached hereto (the “Consent”) executed by each of which the Guarantors.
(b) The Successor Agency Documentation shall be originals have been executed and delivered and, subject only to Section 4 hereof, become effective, and Bank of America, N.A. shall have succeeded DBNY as administrative agent under the Existing Credit Agreement.
(c) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent (a) a certificate of each Loan Party and of each general partner or e-mails (managing member thereof certifying as to the matters required by the certificate described in a .pdf formatSection 3.01(a)(viii) or telecopies (of the Existing Credit Agreement, in each casecase as of the Amendment Effective Date, followed promptly by originals(b) unless otherwise specified, a certificate of the Secretary or an Assistant Secretary of each properly executed by a Loan Party (or Responsible Officer of the signing general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, each dated or of the Closing Date (orgeneral partner or managing member of such Loan Party, in the case of certificates of governmental officials, a recent date before the Closing Date) authorized to sign this Amendment and each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder and (c) certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by this Amendment and each Loan Document contemplated hereby to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(d) The Administrative Agent shall have received evidence of the execution, delivery and substantially concurrent effectiveness of an amendment to the 2018 Term Loan Agreement, in form and substance satisfactory to the Administrative Agent Agent, modifying the underlying agreement to account for the terms herein and each of the Lenders:making certain other corresponding modifications.
(e) (i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient fees provided for in number for distribution to each Lender requesting an originally executed copy of this Agreement);
Section 5 and (ii) a Revolving Note executed by all of the Borrower(s) in favor reasonable out-of-pocket expenses of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each Loan Party, in each case, as the Administrative Agent may require evidencing (including the identity, authority reasonable fees and capacity expenses of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as for the Administrative Agent, ) due and payable on the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Amendment Effective Date shall have been paidpaid in full.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement Amendment on the Amendment No. 2 Effective Date is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
precedent that (i) executed the Agent shall have received counterparts of this Agreement (it being understood that Amendment duly executed by the Loan Parties agree to deliver after Company, the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
Banks and the Agent, (ii) a Revolving Note copy of the Restated Articles of Incorporation of the Company, together with all amendments, certified by the Secretary or an Assistant Secretary of the Company, and a certificate of good standing, certified by the appropriate governmental officer in its jurisdiction of incorporation, (iii) copies, certified by the Secretary or an Assistant Secretary of the Company, of its bylaws and of its Board of Directors’ resolutions (and resolutions of other bodies, if any are deemed necessary by counsel for the Bank) authorizing the execution of this Amendment, (iv) an incumbency certificate, executed by the Borrower(s) in favor Secretary or an Assistant Secretary of each Lender requesting a Note;
(iii) such certificates the Company, which shall identify by name and title and bear the original or facsimile signature of resolutions the officers of the Company authorized to sign the Amendment and the officers or other action employees authorized to make borrowings under the Credit Agreement, upon which certificate the Bank shall be entitled to rely until informed of any change in writing by the Company, (v) a certificate, signed by a Designated Officer of the Company, stating that on the Amendment No. 2 Effective Date (a) no Default or Event of Default has occurred and incumbency certificates is continuing and (b) each representation or warranty contained in Article V of Responsible Officers the Credit Agreement is true and correct, (vi) an opinion letter of each Loan Party(a) Xxxxxxx X. Xxxxxxx, Esq., Assistant General Counsel of the Company and (b) Sidley Austin LLP, counsel for the Agent, in each case, case covering substantially the same matters as the Administrative corresponding opinion letter issued in connection with the Credit Agreement and (vii) the Agent may require evidencing shall have received payment and/or reimbursement of the identityAgent’s and its affiliates’ fees and expenses (including, authority to the extent invoiced, fees and capacity expenses of each Responsible Officer thereof authorized to act as a Responsible Officer counsel for the Agent) in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may requireAmendment.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness This Amendment shall become effective as of this Agreement is subject to satisfaction or waiver of the Amendment Effective Date when, and only when, the following conditions precedenthave been satisfied:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) electronic copies unless otherwise specified, each properly executed by a Responsible Officer duly authorized officer of the signing Loan Party, each dated the Closing Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement (it being understood that Amendment executed by the Loan Parties agree to deliver after Original Required Lenders, the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement)New Lenders, the Borrower and the Agent;
(ii) a Revolving Note executed by certified copies of the Borrower(s) in favor resolutions of each Lender requesting a Note;
(iii) such certificates the board of resolutions directors or other action and incumbency certificates of Responsible Officers equivalent governing body of each Loan PartyParty approving the Amendment Transactions, in each casethis Amendment, as the Administrative Agent may require evidencing the identity, authority Second Amended and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Restated Credit Agreement and the each other Loan Documents Document to which such it is or is to be a party and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Amendment Transactions, this Amendment, the Second Amended and Restated Credit Agreement and each other Loan Party Document to which it is a party;
(iviii) a copy of the certificate of the Secretary of State of the jurisdiction of incorporation or formation, as the case may be, of each Loan Party, dated a recent date before the Amendment Effective Date, certifying (A) as to a true and correct copy of the charter, article of formation, or such other constitutive document on file in such Secretary’s office and (B) that (1) such documents Loan Party has paid all franchise taxes to the date of such certificate and certifications as the Administrative Agent may reasonably require to evidence that each (2) such Loan Party is duly organized incorporated or formed, and is validly existing formed and in good standing in its or presently subsisting under the laws of the State of the jurisdiction of organizationincorporation or formation;
(iv) a certificate of each Loan Party signed on behalf of such Loan Party by its President or a Vice President and its Secretary, any Assistant Secretary or a duly authorized person, dated the Amendment Effective Date (the statements made in which certificate shall be true on and as of the Amendment Effective Date), certifying as to (A) the absence of any amendments to the charter or applicable constitutive documents of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 4(a)(iii) above, (B) a true and correct copy of the bylaws, limited liability company agreement, or partnership agreement of such Loan Party as in effect on the date on which the resolutions referred to in Section 4(a)(ii) above were adopted and on the Amendment Effective Date and (C) the due incorporation or formation and good standing or valid existence of such Loan Party as a corporation, limited liability company or partnership organized or formed under the laws of the jurisdiction of its incorporation or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party;
(v) a favorable opinion certificate of Xxxxxx & Xxxxxxx LLPthe Secretary, counsel an Assistant Secretary or a duly authorized person of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to the sign each Loan Parties, addressed Document to the Administrative Agent and each Lender, as which it is or is to such matters concerning the Loan Parties be a party and the Loan Documents as the Administrative Agent may reasonably requestother documents to be delivered hereunder and thereunder;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer Officer, or a duly authorized person, of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) of the Second Amended and Restated Credit Agreement have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viiivii) a certificates attesting to the Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, and its Subsidiaries on a consolidated basis before and after giving effect to the transactions Amendment Transactions, from its chief financial officer.
(viii) Notes executed by the Borrower in favor of each Lender that has requested Notes at least 2 Business Days prior to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Amendment Effective Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;; and
(ix) the financial statements referenced executed opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special New York counsel to the Loan Parties, addressed to the Agent and each Lender, substantially as to the matters set forth, mutatis mutandis, in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as Exhibit H to the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may requireOriginal Credit Agreement.
(b) Any fees required to be paid The New Lenders shall have received, to the Lendersextent requested, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paiddate which is two (2) Business Days prior to the Amendment Effective Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including the PATRIOT Act.
(c) The receipt (x) Any fees, costs and expenses required to be paid on or before the Amendment Effective Date to the Agent or any Arranger (i) pursuant to any fee or engagement letters or (ii) otherwise for which invoices have been received at least one Business Day prior to the Amendment Effective Date, (y) an amendment fee to each Original Lender that has executed this Amendment by the Administrative Agent Amendment Effective Date in an aggregate amount equal to 0.375% of all necessary information such Original Lender’s Revolving Credit Commitment immediately prior to the Amendment Effective Date (the “Original Commitment”) and (z) a fee to each applicable Revolving Lender that has provided new commitments under the Revolving Facility in connection with an amount equal to 0.50% of the PATRIOT Act, “know your customer” requirements, amount of such Lender’s Revolving Credit Commitment on the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirementsAmendment Effective Date in excess of such Lender’s Original Commitment, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Dateshall have been paid.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Agent) to the extent invoiced at least two one Business Days Day prior to or on the Closing Amendment Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing and customary post-closing proceedings included in such invoices (provided provided, that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03.
(e) The conversions, for purposes of determining compliance with the conditions payments and repayments specified in this Section 4.016 below shall have been completed and made, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the as applicable.
(f) The Administrative Agent shall have received notice from such Lender satisfactory evidence that all outstanding indebtedness of the Loan Parties under the Existing Senior Notes shall have been redeemed, defeased and repaid in full prior to or substantially concurrently with the proposed Closing occurrence of the Amendment Effective Date.
(g) The Borrower shall have received, substantially simultaneously with the occurrence of the Amended Effective Date specifying its objection thereto(upon the satisfaction or waiver of each other condition set forth in this Section 4), gross cash proceeds of not less than $600,000,000 from the issuance of the Senior Notes.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedent:.
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or originals, e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer or a duly authorized officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) an executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy counterpart of this Agreement);
(ii) a Revolving Credit Note duly executed by the Borrower(s) Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, the Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party the Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Borrower is duly organized or formed, and the Borrower is validly existing and existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of Xxxxxx & Xxxxxxx Xxxxxxxx Chance US LLP, counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties Borrower and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party the Borrower and the validity against such Loan Party the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Corporate Property Associates 17 - Global INC)
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Note and/or Term Note, as applicable, executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each Loan Party, in each case, as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a duly completed Compliance Certificate signed by a Responsible Officer of the Parent, giving pro forma effect to the transactions to occur on the Closing Date (including, without limitation, the Combination and all Credit Extensions to occur on the Closing Date and the application of proceeds thereof), but calculated as of the last day of the fiscal quarter ending immediately prior to the Closing Date (such Compliance Certificate, the “Pro Forma Closing Date Compliance Certificate”);
(ix) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ixx) the financial statements referenced in Section 5.05(a) and (b);
(xi) the Escrow Agreement, executed by the Escrow Agent, the Parent Borrower, each of the Guarantors, each of the Lenders, the Administrative Agent and each of the L/C Issuers; and
(xxii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Substantially concurrently with the Facilities becoming effective:
(i) the Combination shall be consummated in accordance with applicable Law and regulatory approvals and (i) if effected by way of Scheme, the terms of the Scheme Document (as defined in the Proxy Statement) and (ii) if effected by way of Public Offer, the terms of an offer document to be approved by the Administrative Agent (acting reasonably), but in each case, without giving effect to any amendments or waivers thereof, or consents thereunder, that are materially adverse to the interests of the Lenders or the Arrangers in their respective capacities as such without the prior written consent of the Arrangers, such consent not to be unreasonably withheld, delayed or conditioned;
(ii) all Indebtedness under or in connection with the credit facility provided under the Existing KWE Credit Agreement (including without limitation all unpaid principal, interest, fees, expenses and other amounts owing thereunder or in connection therewith) shall have been repaid in full, all commitments therefor shall have been terminated and all Liens securing, or otherwise arising under or in connection with, such credit facilities shall have been released and terminated;
(c) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(cd) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than At least ten Business Days prior to the Closing Date, the Administrative Agent and the Lenders shall have received documentation and other information with respect to each of the Loan Parties which has been requested at least fifteen Business Days prior to the Closing Date and is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act (Title III of Pub. L. 107 56 (signed into law October 26, 2001)) and regulations implemented by the US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act.
(de) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement is and the occurrence of the Closing Date are subject to satisfaction (or waiver by the Administrative Agent) of the following conditions precedentprecedent on or prior to the Closing Date:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) Party and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that by the Loan Parties agree to deliver after Borrower and the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement)Administrative Agent;
(ii) a Revolving Note (or Notes) executed by the Borrower(s) Borrower and dated the Closing Date in favor of each Lender requesting a NoteNote (or Notes);
(iii) the Guaranty, dated as of the Closing Date, duly executed by each Guarantor;
(iv) the Security Agreement, dated as of the Closing Date, duly executed by each Loan Party, together with:
(A) agreed forms of Uniform Commercial Code financing statements (Form UCC-1), naming each of the Loan Parties (as appropriate) as the debtor, and the Administrative Agent on behalf of the Secured Parties, as the secured party;
(B) Uniform Commercial Code termination statements necessary to release all Liens and other rights of any Person securing any existing Liens (other than Permitted Liens);
(C) a perfection certificate duly executed by each Loan Party;
(D) lien search results covering the Loan Parties, dated a date reasonably near to the Closing Date;
(E) certificates representing the pledged securities referred to therein accompanied by undated stock powers executed in blank; and
(F) intellectual property security agreements in respect of Patents, Trademarks and Copyrights (each as defined in the Security Agreement) owned by the Loan Parties on the Closing Date;
(v) insurance certificates evidencing the liability and property insurance covering the Loan Parties;
(vi) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(ivvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in its business in each jurisdiction of organizationwhere such Person is qualified to do business;
(vviii) a favorable opinion opinions of (w) Xxxxxx & Xxxxxxx LLP, corporate counsel to the Loan Parties, (x) Squire Xxxxxx Xxxxx (US) LLP, Arizona counsel to the Loan Parties, (y) Xxxxxx White Xxxxx & Xxxxxxxxx, LLC, Alaska counsel to the Loan Parties and (z) Xxxxxxxxx Xxxxx PC, Nevada counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestAgent;
(viix) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required[reserved];
(viix) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viiixi) a Solvency Certificate signed by (i) the Audited Financial Statements and (ii) unaudited consolidated balance sheet of the Borrower and its Restricted Subsidiaries dated as of March 31, 2021, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal quarters ended on these dates (“Unaudited Financial Statements”);
(xii) solvency certificate from the chief financial officer or the chief accounting another officer with equivalent duties of the Parent Borrower certifying thatthat the Borrower and its Subsidiaries, on a consolidated basis, after giving effect to the transactions contemplated hereby and the use of proceeds of the Loans made to occur the Borrower on the Closing Date Date, are Solvent; and
(xiii) the Loan Parties shall have provided or caused to be provided the documentation and other information to the Lenders that are reasonably required by the applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, all Credit Extensions the Patriot Act and the Beneficial Ownership Regulation, in each case, at least three Business Days prior to occur on the Closing Date), to the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) extent that the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers Arrangers or the Required Lenders Lenders, as applicable, have reasonably may requirerequested such items in writing at least 10 Business Days prior to the Closing Date.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection Refinancing shall have occurred or shall occur substantially contemporaneously with the PATRIOT Act, “know your customer” requirements, funding of the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or Initial Term Loans on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Viad Corp)
Conditions of Effectiveness. The effectiveness of this thisthe Agreement is on the Effective Date iswas subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or e-mails other electronic image scan transmission (in a .pdf formate.g., “pdf” or “tif ”“ via electronic mail) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or the Lenders, as applicable, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to the Agent, each Lender requesting an originally executed copy of this Agreement)and the Borrower;
(ii) a Revolving Note executed by the Borrower(s) Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction of organizationwould not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx Shearman & Xxxxxxx Sterling LLP, counsel to the Loan Parties, and of certain local counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and Effect, (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any Solvency of the transactions contemplated hereby or therebyLoan Parties, or (2) could reasonably be expected to havetaken as a whole, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer as of the Parent Borrower certifying that, Effective Date after giving effect to the transactions to occur on the Closing Date (includingcontemplated hereby, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
D) either that (x1) such other assurancesno consents, certificates, documents, consents licenses or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees approvals are required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Actexecution, “know your customer” requirementsdelivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, the Beneficial Ownership Regulation or (including a Beneficial Ownership Certification2) that all such consents, if requested), licenses and other customary requirements, approvals have been obtained and are in each case full force and effect;
(vii) evidence that all insurance required to be delivered by maintained pursuant to the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid Documents and all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality endorsements in favor of the provisions of Agent required under the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified Loan Documents have been obtained and are in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.effect;
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement is First Amendment (including the amendments contained in Section 2 and agreements contained in Sections 3 and 4) shall be subject to receipt by the Administrative Agent of duly executed and delivered counterparts of this First Amendment that, when taken together, bear the signatures of the (i) Borrower, (ii) the Required Lenders, (iii) the Revolving Credit Lenders constituting at least the Required Class Lenders with respect to the Revolving Credit Facility, (iv) the Replacement Lender and (v) all Subsidiary Guarantors, and to the satisfaction (or waiver written waiver) of the following conditions precedent:(the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”):
(a) The Administrative Agent’s receipt Agent shall have received favorable opinions of (i) Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties and (ii) the general counsel of the followingBorrower, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originalsin a form reasonably satisfactory to the Administrative Agent and addressed to the Administrative Agent and each Lender.
(b) unless otherwise specifiedThe Administrative Agent shall have received the following, each properly executed by a Responsible Officer of the signing Loan Party (in the case of items required to be executed on behalf of a Loan Party), each dated the Closing First Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) First Amendment Effective Date and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates certifications of resolutions or other action and incumbency certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(ivii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in formed including a certificate as of a recent date of the good standing in of each of the Loan Parties under the laws of its jurisdiction of organization, from the appropriate Governmental Authority of such jurisdiction (where available in such jurisdiction);
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying that: (A) that the conditions specified representations and warranties of each Loan Party contained in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date Article V of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Amended Credit Agreement or any other Loan Document, or any Document are true and correct in all material respects on and as of the transactions contemplated hereby First Amendment Effective Date (except to the extent that such representations and warranties specifically refer to an earlier date, they are true and correct in all material respects as of such earlier date); provided, that, to the extent that such representations and warranties are qualified by materiality, material adverse effect or therebysimilar language, they are true and correct in all respects, (B) no Default or Event of Default exists or would result from such proposed First Amendment Effective Date Transactions (2) could reasonably be expected to have, either individually or as defined in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Amended Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(aAgreement) and (b)C) the condition specified in clause (g) below has been satisfied; and
(xiv) such at least three Business Days prior to the First Amendment Effective Date, all documentation and other assurancesinformation required by regulatory authorities with respect to the Loan Parties reasonably requested by the Lenders at least 10 Business Days prior to the First Amendment Effective Date under applicable “know your customer” and anti-money laundering rules and regulations, certificatesincluding the USA Patriot Act, documents, consents or opinions as which documentation and other information the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may requireAgent shall promptly deliver to any requesting Lender.
(bA) Any All fees required to be paid by the Borrower to the Lenders, the Administrative Agent Agents and the Arrangers on or before the Closing First Amendment Effective Date shall have been paid.
paid and (cB) The receipt by all out-of-pocket expenses of the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation Agents (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly Agents) required to such counsel) be paid or reimbursed by the Borrower on the First Amendment Effective Date shall have been paid, to the extent invoiced at least two three Business Days prior to or on the Closing First Amendment Effective Date.
(d) Substantially concurrently with the effectiveness of this First Amendment, plus such additional each (A) Non-Consenting Revolving Credit Lender shall have received payment of all accrued fees and all other amounts payable to it hereunder and under the other Loan Documents from the Replacement Lender (and of such fees, charges any amounts payable by the Borrower then due pursuant to Sections 3.01 and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality 3.04 of the provisions Credit Agreement from the Borrower) and (B) Non-Consenting Term Lender shall have received payment of all amounts payable to such Non-Consenting Term Lender hereunder and under the other Loan Documents from the Replacement Lender (and of any amounts payable by the Borrower then due pursuant to Sections 3.01 and 3.04 of the Credit Agreement from the Borrower).
(e) The Borrower shall have, substantially concurrently with the effectiveness of this First Amendment, issued the 2025 Senior Notes (as defined in the Amended Credit Agreement) and received the net proceeds in respect thereof.
(f) The Borrower shall have, substantially concurrently with the effectiveness of this First Amendment, made the First Amendment Effective Date Prepayment (as defined in the Amended Credit Agreement).
(g) The Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenant set forth in Section 7.08 of the Amended Credit Agreement, recomputed as of the last paragraph day of Section 9.03, the most recently ended fiscal quarter for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to which financial statements have consented to, approved been or accepted or were required to be satisfied with, each document or other matter required thereunder delivered pursuant to be consented to or approved by or acceptable or satisfactory to a Lender unless Section 6.01 of the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoCredit Agreement.
Appears in 1 contract
Samples: Credit Agreement (Time Inc.)
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of This Amendment shall become effective (such date, the following conditions precedent“Amendment No. 3 Effective Date”) upon Agent’s receipt of:
(a) The Administrative a copy of this Amendment duly executed and delivered by Agent’s receipt of the following, Required Lenders, each Loan Party and Personal Guarantor (defined below) with one original executed copy of which shall this Amendment to be originals or e-mails (in a .pdf format) or telecopies (in each casepromptly delivered by Loan Parties to Agent, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:Agent;
(ib) an executed counterparts Revolving Credit Note, dated of this Agreement even date herewith, in the principal amount of $7,500,000 issued by Borrower to the order of New Lender, with one original executed copy to be promptly delivered by Borrower to Agent;
(it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting c) an originally executed copy of this Agreement)an Amendment No. 3 Fee Letter, dated of even date herewith, between Borrower and WBCC, in form and substance satisfactory to WBCC;
(iid) a Revolving Note executed by certificate of the Borrower(sSecretary (or Assistant Secretary) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each Loan Party, dated on or around the Amendment No. 3 Effective Date, in each caseform and substance acceptable to Agent, certifying as to (a) the Administrative Agent may require evidencing incumbency and signature of the identity, authority and capacity officers (or other representatives) of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with Loan Party executing this Agreement and Amendment, (b) the authorizations by the board of directors (or other Loan Documents to which governing body) of such Loan Party is a party;
(iv) to such documents officers or other representatives to enter into and certifications carry out such transactions as are contemplated pursuant to this Amendment; and including therewith copies of the Administrative Agent may reasonably require to evidence that Organic Documents of such Loan Party as in effect on the Amendment No. 3 Effective Date and good standing certificates for each Loan Party is duly organized dated not more than thirty (30) days prior to the Amendment No. 3 Effective Date, issued by the secretary of state or formed, and is validly existing and in good standing in its other appropriate official of each Loan Party’s jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(xe) such other assurances, certificates, documents, consents instruments and agreements as Agent or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably its counsel may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit and Security Agreement (Manhattan Bridge Capital, Inc)
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails electronic copies (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer duly authorized officer of the applicable signing Loan Party, each dated as of the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement (it being understood that executed by the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and each Loan Party;
(ii) a Revolving each Note executed by the Borrower(s) Borrowers in favor of each Lender requesting a NoteNote or Notes;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers [Reserved];
(iv) [Reserved];
(v) [Reserved];
(vi) [Reserved];
(vii) a certificate of each Loan Party, in each casedated as of the Effective Date and executed by a secretary, assistant secretary or other senior officer (as the Administrative Agent case may require evidencing be) thereof, which shall (A) certify that attached thereto is a true and complete copy of the identityresolutions or written consents of its shareholders, authority partners, managers, members, board of directors, board of managers or other governing body authorizing the execution, delivery and capacity performance of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which it is a party and, in the case of the Borrowers, the borrowings hereunder, and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which it is a partyparty on the Effective Date and (C) certify (x) that attached thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or other equivalent thereof) of such Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its by-laws or operating, management, partnership or similar agreement and (y) that such documents or agreements have not been amended, restated, amended and restated, supplemented or otherwise modified (except as otherwise attached to such certificate and certified therein as being the only amendments, restatements, amendments and restatements, supplements or modifications thereto as of such date) and (ii) a good standing (or equivalent) certificate as of a recent date for such Loan Party from (A) its jurisdiction of organization and (B) in each jurisdiction in which it is qualified to engage in business where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except, in the case of this clause (B), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viviii) a certificate of a Responsible Officer duly authorized officer of the Parent Borrower each Loan Party either (A) attaching copies of stating that all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, party have been received and such consents, licenses and approvals shall be are in full force and effect, effect or (B) stating that no such consents, licenses or approvals are so requiredrequired in connection with the consummation by such Loan Party of the Transactions;
(viiix) a certificate signed by a Responsible Officer of the Parent Borrower Holdings certifying (A) that the conditions specified set forth in Sections 4.02(aSection 4.01(f), (h) and (bi) have been satisfied, (B) that there has been no event or circumstance since the date satisfied as of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effectsuch date;
(viiix) a Solvency Certificate signed by solvency certificate, substantially in the chief financial officer or form of Exhibit L from a Responsible Officer of Holdings (or, at the chief accounting officer option of the Parent Borrower certifying thatHoldings, after giving effect a customary third-party opinion as to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties solvency of Holdings and their its Subsidiaries, taken as a whole and on a consolidated basis, are Solvent);
(ixxi) a Borrowing Base Certificate covering the financial statements referenced in Section 5.05(aBorrowing Base as of September 30, 2018, with customary supporting documentation;
(xii) certificates of insurance evidencing that the Administrative Agent, for the benefit of the Secured Parties, shall be named as an additional insured, assignee, mortgagee and/or loss payee, as appropriate, with respect to all applicable insurance coverage and (b)policies of the Loan Parties; and
(xxiii) such other assurancesthe executed opinion of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, certificatescounsel to the Loan Parties, documents, consents or opinions as addressed to the Administrative Agent, the Lenders and the L/C Issuers or Issuer, as to such matters concerning the Required Lenders Loan Parties and the Loan Documents as the Administrative Agent may reasonably may requirerequest.
(b) (i) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Effective Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, any Arranger or the Parent Borrower Lenders pursuant to the Fee Letter shall have been paid all fees, charges and disbursements of counsel (ii) any costs and expenses required to be paid on or before the Effective Date to the Administrative Agent (directly to such counsel) Agent, any Arranger or the Lenders to the extent invoiced invoices have been received by Holdings at least two Business Days prior to the Effective Date (or on the Closing Date, plus such additional amounts of such fees, charges and disbursements later date as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred reasonably agreed by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent Holdings) shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretobeen paid.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Warrior Met Coal, Inc.)
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals Agreement, sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and the Borrower;
(ii) a Revolving Closing Date Term Note executed by the Borrower(s) Borrower in favor of each Closing Date Term Lender requesting a Closing Date Term Note and (ii) a Delayed Draw Term Note executed by the Borrower in favor of each Delayed Draw Term Lender requesting a Delayed Draw Term Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in (A) its jurisdiction of organizationorganization and (B) each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx & Xxxxxxx Gxxxxxxxx Txxxxxx, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, Lender as to such customary matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a), (b) and (bd) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2022, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in writing in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect;
(viii) a Solvency Certificate signed by from the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties Borrower and their its Subsidiaries, taken as a whole and on a consolidated basiswhole, are Solvent;
(ix) a duly completed Compliance Certificate, giving pro forma effect to the transactions to occur on or about the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date) (such Compliance Certificate, the “Pro Forma Closing Date Compliance Certificate”);
(x) the financial statements referenced in Section 5.05(a) and (b); and
(xxi) such other assurances, certificates, documents, documents or consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders Agent reasonably may require.
(b) Any fees required hereunder or under the Fee Letter to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced at least two Business Days (which invoice may be in summary form) prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(i) Upon the reasonable request of any Lender made at least (10) days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act and (ii) at least five (5) days prior to the Closing Date, if any Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, then the Borrower shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Getty Realty Corp /Md/)
Conditions of Effectiveness. The effectiveness of this Agreement Amendment on the Amendment Effective Date is subject to satisfaction or waiver the Agent’s receipt of each of the following conditions precedentfollowing:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) duly executed counterparts of this Agreement (it being understood that Amendment from each Credit Party, the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to Agent, each Existing Lender requesting an originally executed copy of this Agreement)and each New Lender;
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each Loan Party, in each case, as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vib) a certificate of the secretary or an assistant secretary of each Credit Party certifying (x) that there have been no changes in the certificate of incorporation or other charter document of such Credit Party, as attached thereto and as certified as of a Responsible Officer recent date by the Secretary of State of the Parent Borrower either jurisdiction of its organization, since the date of the certification thereof by such secretary of state, (Ay) attaching copies the by-laws or other applicable organizational document, as attached thereto, of all consents, licenses such Credit Party as in effect on the date of such certification and approvals (z) resolutions of the board of directors or other than the resolutions referenced in clause (iii) above) required in connection with governing body of such Credit Party authorizing the execution, delivery and performance by such Loan Party of this Amendment and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or Credit Agreement (B) stating that no such consents, licenses or approvals are so requiredas amended hereby);
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by a good standing certificate for each Credit Party from the Administrative Agent Secretary of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent State of such information is requested not later than ten Business Days prior to the Closing Date.Credit Party’s jurisdiction of its organization;
(d) Unless waived by an opinion of the Administrative AgentCredit Parties’ counsel, the Parent Borrower shall have paid all feesin form, charges scope and disbursements of counsel substance reasonably acceptable to the Administrative Agent Agent;
(directly e) payment in full, in immediately available funds, for the account of the Existing Lenders and for the Agent’s own account, as the case may be, of (i) all fees and other amounts due and payable on or prior to such counsel) the Amendment Effective Date, including, to the extent invoiced at least two one (1) Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender Day prior to the proposed Closing Date specifying its objection thereto.Amendment Effective Date, reimbursement or payment of all out-of-pocket costs expenses (including Attorney Costs) required to be reimbursed or paid by the Borrower under the Loan Documents and (ii) all accrued and unpaid interest under the Credit Agreement, all accrued and unpaid fees under Section 1.9(b) of the Credit Agreement and any amounts due and payable under Section 10.4 of the Credit Agreement; and
(f) payment in full, in immediately available funds, of the fees described in that certain fee letter dated as of the date hereof, among the Borrower, the Agent and GE Capital Markets, Inc.
Appears in 1 contract
Samples: Credit Agreement (Unisys Corp)
Conditions of Effectiveness. The effectiveness This Amendment shall become effective as of this Agreement is subject to satisfaction or waiver the first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedentprecedent shall have been satisfied:
(a) The Administrative Agent’s receipt Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent (x) counterparts of this Amendment executed by the Borrower, the Administrative Agent and those Lenders comprising Required Lenders or, as to any of such Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, and (y) the consent attached hereto (the “Consent”) executed by each of the followingGuarantors.
(b) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, counterparts of each of which the Pledge Agreement and the Intercreditor Agreement executed by each of the parties thereto.
(c) The Administrative Agent shall be originals have received, in form and substance reasonably satisfactory to the Administrative Agent (a) a certificate of each Loan Party and of each general partner or e-mails (managing member thereof certifying as to the matters required by the certificate described in a .pdf formatSection 3.01(a)(viii) or telecopies (of the Existing Credit Agreement, in each casecase as of the Amendment Effective Date, followed promptly by originals(b) unless otherwise specified, a certificate of the Secretary or an Assistant Secretary of each properly executed by a Loan Party (or Responsible Officer of the signing general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the general partner or managing member of such Loan Party, authorized to sign this Amendment and each dated Loan Document to which it is or is to be a party and the Closing other documents to be delivered hereunder and thereunder and (c) certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by this Amendment and each Loan Document contemplated hereby to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(d) The Administrative Agent shall have received confirmation from DB as administrative agent under the Revolving Credit Agreement that DB is satisfied that all filings necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Pledge Agreement will be made promptly following the Amendment Effective Date (orit being acknowledged that DB as administrative agent under the Revolving Credit Agreement is performing the diligence with respect to the Collateral and taking the actions necessary or desirable to perfect the security interest therein).
(e) The Administrative Agent shall have received, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
Agent, (i) executed counterparts an amendment of this the Revolving Credit Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
and (ii) a Revolving Note executed by an amendment to the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each 7 Year Term Loan PartyAgreement, in each case, as case modifying the underlying agreement to account for the terms herein and making certain other corresponding modifications.
(f) (i) the fees provided for in Section 10 and (ii) all of the reasonable out-of-pocket expenses of the Administrative Agent may require evidencing (including the identity, authority reasonable fees and capacity expenses of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as for the Administrative Agent, ) due and payable on the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Amendment Effective Date shall have been paidpaid in full.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of the amendment and restatement of the Existing Credit Agreement pursuant to Section 1 of this Agreement, the amendment to the Subsidiary Guaranty pursuant to Section 2 of this Agreement is and the amendment to the Pledge and Security Agreement pursuant to Section 3 of this Agreement (the “Restatement Effective Date”) shall be subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent (or its counsel) shall have received from the followingBorrower, the Subsidiary Guarantors, the Required Lenders, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified2018 Revolving Lender, each properly executed by a Responsible Officer of the signing Loan Party2018 Term A Lender, each dated Issuing Bank, the Closing Date (or, in Swingline Lender and the case Administrative Agent either a counterpart of certificates this Agreement signed on behalf of governmental officials, a recent date before the Closing Date) and each in form and substance such party or written evidence satisfactory to the Administrative Agent and each (which may include facsimile or other electronic transmission of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy a signed signature page of this Agreement);) that such party has signed a counterpart of this Agreement.
(iib) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each Loan Party, in each case, as the The Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) shall have received a favorable written opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, (addressed to the Administrative Agent and each Lenderthe Lenders and dated the Restatement Effective Date) of Skadden, as to Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Loan Parties, covering such matters concerning relating to the Loan Parties Parties, the Loan Documents, this Agreement and the Loan Documents transactions contemplated hereby as the Administrative Agent may shall reasonably request;. The Borrower hereby requests such counsel to deliver such opinion.
(vic) The Administrative Agent shall have received:
(i) a certificate Certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (w) that there have been no changes in the Certificate of Incorporation or other charter document of such Loan Party, as attached thereto and as certified as of a Responsible Officer recent date by the Secretary of State of the Parent Borrower either jurisdiction of its organization, since the date of the certification thereof by such secretary of state, (Ax) attaching copies the ByLaws or other applicable organizational document, as attached thereto, of all consentssuch Loan Party as in effect on the date of such certification, licenses and approvals (y) resolutions of the Board of Directors or other than the resolutions referenced in clause (iii) above) required in connection with governing body of such Loan Party authorizing the execution, delivery and performance by such of each Loan Document to which it is a party, and (z) the names and true signatures of the incumbent officers of each Loan Party and the validity against such Loan Party of authorized to sign the Loan Documents to which it is a party, and such consents, licenses and approvals shall be (in full force and effect, the case of the Borrower) authorized to request a Borrowing or (B) stating that no such consents, licenses or approvals are so requiredthe issuance of a Letter of Credit under the Restated Credit Agreement;
(viiii) a certificate Good Standing Certificate for each Loan Party from the Secretary of State of the jurisdiction of its organization; and
(iii) a Certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date as of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or Restatement Effective Date the following: (x) all of the representations and warranties of the Borrower set forth in the aggregate, a Material Adverse Effect Restated Credit Agreement are true and correct in all material respects (C) that no action, suit, investigation or proceeding is pending or, other than to the knowledge of any Loan Party, threatened in any court extent qualified by materiality or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a “Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that”, after giving effect to the transactions to occur on the Closing Date (includingin which case, without limitation, all Credit Extensions to occur on the Closing Datesuch representations and warranties are true and correct), except in the Loan Parties case of any such representation and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required warranty that expressly relates to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirementsan earlier date, in each which case to be delivered by the Loan Parties not later such representation and warranty is true and correct in all material respects, other than five Business Days prior to the Closing Date to the extent qualified by materiality or “Material Adverse Effect”, in which case such information representation and warranty is requested not later than ten Business Days prior to the Closing Datetrue and correct on and as of such earlier date and (y) no Default or Event of Default has occurred and is continuing.
(d) Unless waived by the The Administrative Agent, the Parent Borrower Agent shall have paid received (i) all fees, charges fees and disbursements of counsel other amounts due and payable on or prior to the Administrative Agent Restatement Effective Date (directly which, in the case of fees calculated by reference to a Lender’s Revolving Commitment and/or Term Loans, shall be calculated with reference to each such Lender’s Revolving Commitment and/or Term Loans outstanding as of the Restatement Effective Date after giving effect to any prepayments occurring on or prior to such counsel) date), including, to the extent invoiced at least two Business Days one day prior to or on the Closing Restatement Effective Date, plus such additional amounts reimbursement or payment of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or all out-of-pocket expenses required to be incurred reimbursed or paid by it through the closing proceedings Borrower under the Loan Documents and (provided that such estimate shall not thereafter preclude a final settling of accounts between ii) all accrued and unpaid interest under the Borrowers Existing Credit Agreement, all accrued and the Administrative Agent). Without limiting the generality unpaid fees under Sections 2.12(a) and 2.12(b) of the provisions Existing Credit Agreement and any amounts due and payable under Section 2.16 of the last paragraph of Section 9.03Existing Credit Agreement, for purposes of determining compliance in each case, with respect to any Lender’s Revolving Commitment and/or Term A Loans under the conditions specified in this Section 4.01, each Lender Existing Credit Agreement that has signed are being reduced and/or terminated pursuant to this Agreement and Section 1.06 of the Restated Credit Agreement as of the Restatement Effective Date. If any LC Disbursements and/or Swingline Loans are outstanding as of the Restatement Effective Date, such LC Disbursements and/or Swingline Loans shall be deemed to have consented torepaid, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the together with any interest accrued thereon. The Administrative Agent shall have received notify the Borrower and the Lenders of the Restatement Effective Date, and such notice from such Lender prior to the proposed Closing Date specifying its objection theretoshall be conclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness This Amendment shall become effective as of this Agreement is subject to satisfaction or waiver the first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedentprecedent shall have been satisfied:
(a) The Administrative Agent’s receipt Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent (x) counterparts of this Amendment executed by the Borrower, the Administrative Agent and those Lenders comprising Required Lenders or, as to any of such Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, and (y) the consent attached hereto (the “Consent”) executed by each of the followingGuarantors.
(b) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, counterparts of an amendment to the Pledge Agreement executed by each of which the parties thereto.
(c) The Administrative Agent shall be originals have received, in form and substance reasonably satisfactory to the Administrative Agent (a) a certificate of each Loan Party and of each general partner or e-mails (managing member thereof certifying as to the matters required by the certificate described in a .pdf formatSection 3.01(a)(viii) or telecopies (of the Existing Credit Agreement, in each casecase as of the Amendment Effective Date, followed promptly by originals(b) unless otherwise specified, a certificate of the Secretary or an Assistant Secretary of each properly executed by a Loan Party (or Responsible Officer of the signing general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, each dated or of the Closing Date (orgeneral partner or managing member of such Loan Party, in the case of certificates of governmental officials, a recent date before the Closing Date) authorized to sign this Amendment and each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder and (c) certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by this Amendment and each Loan Document contemplated hereby to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(d) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and each of the Lenders:
Agent, (i) executed counterparts an amendment of this the Revolving Credit Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
and (ii) a Revolving Note executed by an amendment to the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each 5 Year Term Loan PartyAgreement, in each case, as case modifying the underlying agreement to account for the terms herein and making certain other corresponding modifications.
(e) (i) the fees provided for in Section 10 and (ii) all of the reasonable out-of-pocket expenses of the Administrative Agent may require evidencing (including the identity, authority reasonable fees and capacity expenses of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as for the Administrative Agent, ) due and payable on the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Amendment Effective Date shall have been paidpaid in full.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver This Amendment shall become effective as of the following conditions precedentdate hereof if, and only if, the Agent shall have received:
(a) The Administrative Agent’s receipt executed copies of this Amendment from the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent Borrower and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(iib) executed copies of any Notes requested by a Revolving Note executed by Lender pursuant to Section 2.13 of the Borrower(s) Credit Agreement in favor connection with this Amendment payable to the order of each Lender such requesting a NoteLender;
(iiic) such certificates executed copies of resolutions the Reaffirmation attached hereto in the form of Exhibit A (the “Reaffirmation”) from each existing Guarantor and Pledgor;
(d) copies of the articles or other action and incumbency certificates certificate of Responsible Officers incorporation (or comparable constituent document) of each Loan Party, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation or organization;
(e) copies, certified by the Secretary or Assistant Secretary of each caseLoan Party, of its by-laws (or comparable governing document) and resolutions of its board of directors (or comparable governing body) authorizing the execution of this Amendment or the Reaffirmation, as applicable;
(f) an incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and title and bear the signatures of the officers of such Loan Party authorized to sign this Amendment or the Reaffirmation, as applicable;
(g) a written opinion of the Loan Parties’ counsel, addressed to the Lenders and the Administrative Agent, in form and substance reasonably acceptable to the Administrative Agent;
(h) such documentation as the Agent may require evidencing shall have reasonably requested to reaffirm the identity, authority and capacity liens granted under the German-law pledge agreement executed by Engineered Solutions L.P. with respect to the capital stock of each Responsible Officer thereof authorized Enerpac GmbH;
(i) all fees (if any) agreed to act as a Responsible Officer be paid by the Borrower in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b)Amendment; and
(xj) such other assurances, certificates, documents, consents or opinions instruments and documents as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information reasonably requested in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Datethis Amendment.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Actuant Corp)
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails electronic copies (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer duly authorized officer of the applicable signing Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement (it being understood that executed by the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and each Loan Party;
(ii) a Revolving each Note executed by the Borrower(s) Borrowers in favor of each Lender requesting a NoteNote or Notes;
(iii) the Security Agreement executed by each Loan Party,
(iv) financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary in order to perfect the Liens and security interests created or purported to be created under the Security Agreement, covering the Collateral described therein;
(v) certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment Lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, Lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any property of any Loan Party is located and the state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such certificates other searches that the Administrative Agent deems reasonably necessary or appropriate, none of resolutions which encumber the Collateral covered or intended to be covered by the Security Agreements (other action and incumbency certificates of Responsible Officers than Permitted Liens);
(vi) the Perfection Certificate, executed by each Loan Party;
(vii) a certificate of each Loan Party, in each casedated as of the Closing Date and executed by a secretary, assistant secretary or other senior officer (as the Administrative Agent case may require evidencing be) thereof, which shall (A) certify that attached thereto is a true and complete copy of the identityresolutions or written consents of its shareholders, authority partners, managers, members, board of directors, board of managers or other governing body authorizing the execution, delivery and capacity performance of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which it is a party and, in the case of the Borrowers, the borrowings hereunder, and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which it is a partyparty on the Closing Date and (C) certify (x) that attached thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or other equivalent thereof) of such Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its by-laws or operating, management, partnership or similar agreement and (y) that such documents or agreements have not been amended, restated, amended and restated, supplemented or otherwise modified (except as otherwise attached to such certificate and certified therein as being the only amendments, restatements, amendments and restatements, supplements or modifications thereto as of such date) and (ii) a good standing (or equivalent) certificate as of a recent date for such Loan Party from (A) its jurisdiction of organization and (B) in each jurisdiction in which it is qualified to engage in business where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except, in the case of this clause (B), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viviii) a certificate of a Responsible Officer duly authorized officer of the Parent Borrower each Loan Party either (A) attaching copies of stating that all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, party have been received and such consents, licenses and approvals shall be are in full force and effect, effect or (B) stating that no such consents, licenses or approvals are so requiredrequired in connection with the consummation by such Loan Party of the Transactions;
(viiix) a certificate signed by a Responsible Officer of the Parent Borrower Holdings certifying (A) that the conditions specified set forth in Sections 4.02(aSection 4.01(f), (g), (h) and (bi) have been satisfied, (B) that there has been no event or circumstance since the date satisfied as of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effectsuch date;
(viiix) a Solvency Certificate signed by solvency certificate, substantially in the chief financial officer or form of Exhibit L from a Responsible Officer of Holdings (or, at the chief accounting officer option of the Parent Borrower certifying thatHoldings, after giving effect a customary third-party opinion as to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties solvency of Holdings and their its Subsidiaries, taken as a whole and on a consolidated basis, are Solvent);
(ixxi) a Borrowing Base Certificate covering the financial statements referenced in Section 5.05(aBorrowing Base as of the Closing Date, with customary supporting documentation;
(xii) certificates of insurance evidencing that the Administrative Agent, for the benefit of the Secured Parties, shall be named as an additional insured, assignee, mortgagee and/or loss payee, as appropriate, with respect to all applicable insurance coverage and (b)policies of the Loan Parties; and
(xxiii) such other assurancesthe executed opinion of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, certificatescounsel to the Loan Parties, documents, consents or opinions as addressed to the Administrative Agent, the Lenders and the L/C Issuers or Issuer, as to such matters concerning the Required Lenders Loan Parties and the Loan Documents as the Administrative Agent may reasonably may requirerequest.
(b) (i) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date to the Administrative Agent, any Arranger or the Lenders pursuant to the Fee Letters shall have been paid and (ii) any costs and expenses required to be paid on or before the Closing Date to the Administrative Agent, any Arranger or the Lenders to the extent invoices have been received by Holdings at least two Business Days prior to the Closing Date (or such later date as reasonably agreed by Holdings) shall have been paid.
(c) [Reserved].
(d) On or prior to the Closing Date, the Acquisition shall have been consummated pursuant to the Acquisition Agreement (without giving effect to any amendments, waivers, modifications or consents that are materially adverse to the interests of the Lenders or the Arrangers, without the consent of the Arrangers).
(e) On or prior to the Closing Date, the Initial Rights Offering shall have been consummated pursuant to the Equity Commitment Letter (without giving effect to any amendments, waivers, modifications or consents that are materially adverse to the interests of the Lenders or the Arrangers, without the consent of the Arrangers), and Holdings shall have received the proceeds of such Initial Rights Offering in an aggregate amount not less than the Minimum Rights Offering Amount.
(f) On the Closing Date, neither Holdings nor any of its Subsidiaries shall have any material Indebtedness for borrowed money (other than any Loans made and Letters of Credit issued on the Closing Date), purchase money Indebtedness, Capital Lease Obligations, working capital facilities for Foreign Subsidiaries, other Indebtedness incurred in the ordinary course of business, and other Indebtedness permitted pursuant to Section 7.02.
(g) Since November 5, 2015, no Company Material Adverse Effect shall have occurred.
(h) The receipt representations and warranties of each Loan Party and its Subsidiaries contained in this Agreement and each other Loan Document, shall be true and correct in all material respects (or, if such representation or warranty is subject to a materiality or Material Adverse Effect qualification, in all respects) on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date.
(i) No Default or Event of Default shall have occurred and be continuing, or would result from, the consummation of the Transactions (including any Credit Extension to be made on the Closing Date and the application of the proceeds thereof).
(j) The Administrative Agent shall have received (i) any certificates representing the Equity Interests required to be pledged pursuant to the Security Agreement, together with an undated stock or similar power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof and (ii) any promissory note required to be pledged to the Administrative Agent pursuant to the Security Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.
(k) Each document (including any UCC (or similar) financing statements) required by the Collateral Documents or under Law or reasonably requested by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior filed, registered or recorded in order to the Closing Date to the extent perfect such information is requested not later than ten Lien shall be in proper form for filing, registration or recordation.
(l) The Administrative Agent shall have received, at least 3 Business Days prior to the Closing Date.
(d) Unless waived , all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act, to the extent requested by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced or any Lender at least two 10 Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for For purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder under any Loan Document to be consented to or approved by or acceptable or satisfactory to a Lender such Lender, unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Warrior Met Coal, LLC)
Conditions of Effectiveness. The effectiveness This Agreement shall become effective as of this Agreement is subject to satisfaction or waiver the first date (the “Second Amendment Effective Date”) that all of the following conditions precedentprecedent shall have been satisfied:
(a) 3.1 The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originalsoriginals to the extent set forth below or otherwise requested by the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) specified and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(ia) executed counterparts of this Agreement (it being understood that Agreement, in such number as requested by the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Note Administrative Agent, duly executed by the Borrower(s) in favor of each Lender requesting a Note;Borrower, the Parent, the Guarantors, the Administrative Agent and Lenders constituting Required Lenders.
(iiib) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(ivc) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(vd) a favorable opinion opinions of (A) Kleinberg, Kaplan, Wxxxx & Cxxxx, P.C., special New York counsel to the Loan Parties and (B) Bxxxxx Xxxxxx & Xxxxxxx LLP, Delaware counsel to the Loan Parties, each addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties Parties, this Agreement and the other Loan Documents as the Administrative Agent may reasonably request;; and
(vie) a certificate of a Responsible Officer of the Parent Borrower either to the effect that (Ai) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) 3.2 and 3.3 have been satisfied and (bii) no event has occurred and is continuing which constitutes a Default.
3.2 After giving effect to this Agreement, the representations and warranties contained in Section 4 are correct on and as of the Second Amendment Effective Date, as though made on and as of such date other than any such representations or warranties that, by their terms, refer to another date, in which case such representations and warranties shall have been satisfiedcorrect as of such other date.
3.3 Since August 31, (B) that 2019, there has been no Material Adverse Change (excluding any event or circumstance since resulting from the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, COVID-19 pandemic to the knowledge of any Loan Party, threatened in any court extent such event or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed circumstance has been publicly disclosed by the chief financial officer Borrower in its securities filings or disclosed in writing by the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers Lenders prior to the Second Amendment Effective Date, and the scope of such adverse effect is no greater than that which has been disclosed).
3.4 The Administrative Agent and each Lender shall have received all documentation and other information that the Administrative Agent or such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S. Patriot Act, and the Beneficial Ownership Regulation, in each case, to the extent requested at least five Business Days prior to the Second Amendment Effective Date.
3.5 Any fees owed to any Lender or Arranger required to be paid on or before the Closing Second Amendment Effective Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
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Conditions of Effectiveness. The effectiveness (a) This Amendment shall become effective as of this Agreement is subject to satisfaction or waiver the date (the “Amendment Effective Date”) that each of the following conditions precedent:precedent shall have been satisfied (or waived in accordance with Section 10.2 of the Credit Agreement):
(a1) The Administrative Agent’s receipt of the followingAgent shall have received (which may be by electronic transmission), each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each Agent, a counterpart of this Amendment which shall have been executed by the Administrative Agent, the Issuing Bank, the Lenders:
, Parent and the Borrower (i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreementwhich may be by PDF transmission);
(ii2) a Revolving Note executed by Each of the Borrower(s) representations and warranties set forth in favor Section 6 of each Lender requesting a Notethis Amendment shall be true and correct;
(iii3) such certificates of resolutions or other action Borrower shall have paid all fees and incumbency certificates of Responsible Officers of each Loan Partyexpenses due and owing to the Lenders, in each case, as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized Sole Lead Arranger on or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel prior to the Loan PartiesAmendment Effective Date pursuant to the terms of this Amendment (including, addressed but not limited to, reasonable attorneys’ fees of counsel to the Administrative Agent and each Lender, as (but limited to such matters concerning the Loan Parties and the Loan Documents as one primary outside counsel for the Administrative Agent may reasonably requestand Sole Lead Arranger)) and any fee letter agreed upon in writing by the Borrower, the Administrative Agent and the Sole Lead Arranger;
(vi4) The Administrative Agent (or its counsel) shall have received, in form and substance satisfactory to the Administrative Agent, a certificate of a Responsible Officer of each Loan Party dated as of the Parent Borrower either (A) Amendment Effective Date, attaching and certifying copies of all consentsits bylaws, licenses partnership agreement or limited liability company agreement, and approvals (other than of the resolutions referenced in clause (iii) above) required in connection with of its board of directors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance by of this Amendment and the other Loan Documents in connection therewith to which it is a party and certifying the name, title and true signature of each officer of such Loan Party and the validity against such Loan Party of executing the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii5) a certificate signed by a Responsible Officer The Administrative Agent (or its counsel) shall have received, in form and substance satisfactory to the Administrative Agent, certified copies of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedarticles or certificate of incorporation, (B) that there has been no event certificate of organization or circumstance since the date limited partnership, or other registered organizational documents of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any each Loan Party, threatened in any court together with certificates of good standing or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Documentexistence, or any as may be available from the Secretary of State of the transactions contemplated hereby or therebyjurisdiction of organization of such Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation, or (2) could reasonably be expected to have, either individually or in the aggregate, each dated as of a Material Adverse Effectrecent date;
(viii6) The Administrative Agent (or its counsel) shall have received, in form and substance satisfactory to the Administrative Agent, a Solvency Certificate signed by favorable written opinion of Xxxxxxx & Knight LLP, counsel to the chief financial officer or the chief accounting officer Loan Parties, dated as of the Parent Borrower certifying that, after giving effect Amendment Effective Date addressed to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers Issuing Bank and each of the Lenders, and covering such matters relating to the Loan Parties, the Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably may requirerequest (which opinions will expressly permit reliance by permitted successors and assigns of the Administrative Agent, the Issuing Bank and the Lenders);
(7) The Administrative Agent (or its counsel) shall have received, in form and substance satisfactory to the Administrative Agent, amendments and reaffirmations of the Collateral Documents executed by Xxxxxxxx and the other Loan Parties, as applicable, in sufficient counterparts for recording, as applicable; and
(8) The Administrative Agent (or its counsel) shall have received, in form and substance satisfactory to the Administrative Agent, such other documents, certificates or information as the Administrative Agent or the Required Lenders shall have reasonably requested.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of Sections 3.1 and 3.2 of the last paragraph of Section 9.03Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4.015(a), each Lender that has signed this Agreement Amendment (and its permitted successors and assigns) shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required thereunder hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Amendment Effective Date specifying its objection thereto.
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Conditions of Effectiveness. The effectiveness of this Agreement is subject to This Amendment shall become effective on the date hereof (the “Amendment No. 2 Effective Date”) upon the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt Agent shall have received counterparts to this Amendment, duly executed by each of the followingBorrower, each of which the Lenders and the Administrative Agent;
(b) The Administrative Agent shall be originals or e-mails have received favorable written opinions (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory addressed to the Administrative Agent and each the Lenders and dated the Amendment No. 2 Effective Date) of the Lenders:
(i) executed counterparts of this Agreement (it being understood that Sidley Austin LLP, counsel for the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
Parties, and (ii) a Revolving Note executed by in-house legal counsel for the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each Loan PartyParties, in each case, covering such matters relating to the Loan Parties and this Amendment as the Administrative Agent may require evidencing shall reasonably request;
(c) The Administrative Agent shall have received certificates of the identity, authority and capacity secretary or an assistant secretary of each Responsible Officer thereof Loan Party (or, if any Loan Party does not have a secretary or assistant secretary, any other Person duly authorized to act execute such a certificate on behalf of such Loan Party), certifying as a Responsible Officer in connection with this Agreement and to (i) specimen signatures of the other persons authorized to execute Loan Documents to which such Loan Party is a party, (ii) copies of resolutions of the board of directors or other appropriate governing body of such Loan Party authorizing the execution and delivery of this Amendment and (iii) copies of such Loan Party’s constituent organizational documents or a statement that such constituent organizational documents have not changed since the time each Loan Party last provided a certification in respect thereof;
(ivd) such documents and certifications as the The Administrative Agent may reasonably require to evidence that shall have received, for each Loan Party is duly organized or formedParty, and is validly existing and in a certificate of good standing in its (or the equivalent) from the appropriate governing agency of such Loan Party’s jurisdiction of organizationorganization (to the extent the concept of good standing is applicable in such jurisdiction);
(ve) a favorable opinion of Xxxxxx & Xxxxxxx LLPThe Administrative Agent shall have received, counsel at least three Business Days prior to the Loan PartiesAmendment No. 2 Effective Date, addressed to all documentation and other information regarding the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending orPatriot Act, to the knowledge extent requested in writing of any Loan Party, threatened the Borrower at least 10 Business Days prior to the Amendment No. 2 Effective Date; and
(f) The Administrative Agent shall have received payment of the Administrative Agent’s and its affiliates’ fees and reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses of counsel for the Administrative Agent) in any court or before any arbitrator or Governmental Authority that (1) relates to connection with this Agreement or Amendment and any other Loan Document, or any of the transactions contemplated hereby or thereby, or and for which invoices have been presented at least one (21) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect Business Day prior to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Amendment No. 2 Effective Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date case, to the extent such information payment is requested not later than ten Business Days prior to the Closing Date.
(drequired by Section 9.03(a) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoCredit Agreement.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness Section 2 of this Agreement is subject to Amendment shall become effective, as of February 27, 2017, upon the satisfaction or waiver of the following conditions precedentconditions:
(a) The Administrative Agent’s receipt execution and delivery of this Amendment by the followingBorrower, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each Required Lenders.
(b) There shall not have occurred a material adverse change (a) in the operations, business, properties, liabilities (actual or contingent) or condition (financial or otherwise) of the Lenders:Guarantor, the Borrower or their Subsidiaries, taken as a whole, since December 31, 2016, (b) the ability of the Borrower or the Guarantor to perform its Obligations under the Loan Documents, (c) the legality, validity, binding effect or enforceability against the Borrower or Guarantor of the Loan Documents (collectively, a “Material Adverse Effect”), or (d) in the facts and information regarding the Borrower and Guarantor as represented to date. sf-3741984 v8
(ic) executed counterparts The absence of this Agreement (it being understood any action, suit, investigation or proceeding pending or, to the knowledge of the Borrower or the Guarantor, threatened in any court or before any arbitrator or governmental authority that the Loan Parties agree could reasonably be expected to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);have a Material Adverse Effect.
(iid) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency The Administrative Agent shall have received certificates of Responsible Officers Officer of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement Amendment and the other Loan Documents to which such Loan Party is a party;.
(e) The Borrower shall have provided the Administrative Agent with executed copies of amendments, under (i) the ABN Revolving Credit Facility and (ii) the Union Bank Term Loan Facility, in each case on terms equivalent to this Amendment, and (iii) the Indenture, dated as of May 1, 2012 between Textainer Marine Containers II Limited and Wxxxx Fargo Bank, National Association, as indenture trustee and (iv) such documents the Indenture dated as of August 5, 2013, between Textainer Marine Containers IV Limited and certifications Wxxxx Fargo Bank, National Association, as the Administrative Agent may reasonably require to evidence that indenture trustee, in each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed case on terms satisfactory to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a partyits reasonable discretion, and such consents, licenses all of items (i) through (iv) certified as complete and approvals shall be correct and in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;except to the extent conditioned on the simultaneous effectiveness of this Amendment.
(viif) The Borrower shall have provided to the Administrative Agent a certificate signed by a Responsible Officer Borrowing Base Certificate as of each of December 31, 2016 and the Amendment No. 6 Effective Date for each of the Parent Borrower certifying (ACredit Agreement, the Union Bank Term Loan and the ABN Revolving Loan, with such reports as of December 31, 2016 for each of the Credit Agreement, the Union Bank Term Loan and the ABN Revolving Loan to include detail as to the characteristics of collateral of the type referred to in Section 9.10(b)(ii) that of the conditions specified in Sections 4.02(a) Credit Agreement, and (biii) have been satisfiedsuch other financial statements and reports as may be requested, (B) that there has been no event or circumstance since all to the date satisfaction of the Audited Financial Statements that has had Administrative Agent.
(g) The Borrower shall have paid or could caused to be reasonably expected paid to have, either individually or the Administrative Agent all fees as described in the aggregatefee letter between the Administrative Agent and the Borrower, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions a fee for the account of each Lender who executes and delivers this Amendment no later than 5:00 p.m. eastern time on February 24, 2017, an amendment fee equal to occur on 25 basis points of the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) respective Commitment of such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may requireLender.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(ch) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselamounts described in Section 8(b) to the extent hereof that have been invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretodate hereof.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails electronic copies (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer duly authorized officer of the applicable signing Loan Party, each dated as of the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement executed by the Administrative Agent, Existing ABL Lenders constituting the Required Lenders (it being understood that under and as defined in the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Existing ABL Credit Agreement), any Person becoming a Lender as of Effective Date and each Loan Party;
(ii) a Revolving each Note executed by the Borrower(s) Borrowers in favor of each Lender requesting a NoteNote or Notes;
(iii) the Security Agreement executed by each Loan Party;
(iv) [reserved];
(v) [reserved;]
(vi) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers duly authorized officers of each Loan PartyParty and each Restricted Subsidiary party to a Loan Document, in each case, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and officer of each such Loan Party or Restricted Subsidiary executing the other Loan Documents to which each such Loan Party or Restricted Subsidiary is a party;
(ivvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party (other than any Immaterial Restricted Subsidiary) is duly organized or formed, and that each such Loan Party is validly existing and existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(vviii) a favorable opinion the executed opinions of Xxxxxx & (i) Hunton Xxxxxxx Xxxxx LLP, counsel to certain of Borrowers and special New York counsel to certain of the other Loan Parties (other than any Immaterial Restricted Subsidiaries) and (ii) Xxxxxxx Xxxxx PLLC, special counsel to certain of the Loan PartiesParties (other than any Immaterial Restricted Subsidiary), in each case, addressed to the Administrative Agent, the Collateral Agent and each Lender, as in form and substance reasonably acceptable to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestand Collateral Agent;
(vii) a certificate of a Responsible Officer Audited Financial Statements, (ii) unaudited condensed consolidated financial statements of the Parent Borrower either Company (Aconsistent with the requirements applicable to unaudited financial statements to be filed with the SEC) attaching copies for the quarters ending March 31, 2021, June 30, 2021 and September 30, 2021 prepared in accordance with GAAP and for the elapsed period of all consents, licenses the fiscal year ending on the last day of such fiscal quarter and approvals (other than for the resolutions referenced in clause comparable periods of the prior fiscal year and (iii) abovefinancial projections (including the assumption on which such projections are based) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredfor fiscal years 2021 through 2024;
(viix) a certificate signed by a Responsible Officer of the Parent Borrower Company certifying (A) that the conditions specified in Sections 4.01(c) and Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance not occurred since the date of the Audited Financial Statements that has had or could be reasonably expected to haveDecember 31, either individually or in the aggregate2020, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viiixi) a Solvency Certificate signed by solvency certificate from the chief financial officer or the chief accounting officer of the Parent Borrower certifying thatCompany in the form of Exhibit L, which demonstrates that the Company and its Restricted Subsidiaries on a consolidated basis, are, and after giving effect to the Transactions and the other transactions to occur on the Closing Date (includingcontemplated hereby, without limitationwill be, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ixxii) copies of UCC, tax and judgment Lien searches, each of a recent date listing all effective financing statements, Lien notices or comparable documents that name any Loan Party (other than any Immaterial Restricted Subsidiary) as debtor and that are filed in those state and county jurisdictions in which any Material Real Property of any Loan Party (other than any Immaterial Restricted Subsidiary) is located and the financial statements referenced state and county jurisdictions in Section 5.05(awhich any Loan Party (other than any Immaterial Restricted Subsidiary) is organized or maintains its principal place of business and such other searches that the Administrative Agent deems reasonably necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Security Agreements (bother than Permitted Liens);
(xiii) a completed Collateral Questionnaire dated the Effective Date and executed by a Responsible Officer of the Borrower Representative in respect of each Loan Party (other than any Immaterial Restricted Subsidiary);
(xiv) a Borrowing Base Certificate covering the Borrowing Base as of the Effective Date, with customary supporting documentation; and
(xxv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require[reserved].
(bi) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Effective Date to the Administrative Agent, the Arrangers or the Lenders pursuant to the Engagement Letter shall have been paid and (ii) any costs and expenses required to be paid on or before the Effective Date to the Administrative Agent or the Arrangers to the extent invoices have been received by the Company at least two (2) Business Days prior to the Effective Date (or such later date as reasonably agreed by the Company) shall have been paid.
(c) The receipt by the Administrative Agent of Company and its Restricted Subsidiaries shall have complied in all necessary information in connection material respects with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation all state and federal regulations regarding financial assurance requirements (including a Beneficial Ownership Certification, if requestedbut not limited to reclamation bonding requirements), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the The Administrative Agent shall have received notice a certificate from such Lender prior the applicable Loan Party’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 6.07 is in full force and effect, together with endorsements naming Collateral Agent, for the benefit of Secured Parties, as additional insured and lender’s loss payee thereunder to the proposed Closing Date specifying its objection extent required under Section 6.07.
(e) Subject to Section 6.21, in order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Collateral (subject to the limitations set forth in the Collateral Documents), each Loan Party shall have delivered to Collateral Agent:
(i) executed counterparts of the Security Agreement;
(ii) evidence reasonably satisfactory to Administrative Agent of the compliance by each Loan Party of their obligations under the Security Agreement and the other Collateral Documents (including their obligations to execute or authorize, as applicable, and deliver UCC financing statements (including, without limitation, as-extracted financing statements), originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein);
(iii) with respect to any Intellectual Property for which a security interest has not been perfected by filing of the IP Security Agreements filed in connection with the Existing ABL Credit Agreement, fully executed IP Security Agreements (or supplements thereto, as applicable), in proper form for filing or recording in the United States Patent and Trademark Office and the United States Copyright Office, as applicable, memorializing and recording the encumbrance of the Intellectual Property listed in Schedule 6 to the Security Agreement; and
(iv) evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including any other intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by the Administrative Agent.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Alpha Metallurgical Resources, Inc.)
Conditions of Effectiveness. The effectiveness of this Agreement Amendment (the “Amendment No. 2 Effective Date”) is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt Agent shall have received counterparts of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly this Amendment duly executed by a Responsible Officer of the signing each Loan Party, each dated Lender, the Closing Date (orIssuing Bank, in the case of certificates of governmental officials, a recent date before the Closing Date) Swingline Lender and each in form and substance satisfactory to the Administrative Agent.
(b) The Administrative Agent and each of the Lenders:
shall have received (i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers certificate of each Loan Party, in each case, dated as of the Administrative Agent may require evidencing the identity, authority Amendment No. 2 Effective Date and capacity of each Responsible Officer thereof authorized to act as executed by a Responsible Officer in connection with this Agreement and the other Loan Documents to Officer, which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either shall (A) attaching copies of all consents, licenses and approvals (other than certify the resolutions referenced in clause (iii) above) required in connection with of its Board of Directors, members or other governing body authorizing the execution, delivery and performance by such Loan Party of this Amendment, the Amended Credit Agreement and the validity against such Loan Party of the other Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no identify by name and title and bear the signatures of the officers of such consentsLoan Party authorized to sign this Amendment and the other Loan Documents to which it is a party and (C) attach the charter, licenses articles or approvals are so required;certificate of organization or incorporation of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, or other equivalent organizational or governing documents, and (ii) a good standing certificate for each Loan Party from its jurisdiction of organization.
(viic) The Administrative Agent shall have received from the Borrower a certificate signed by a Responsible Officer of the Parent Borrower and dated as of the Amendment No. 2 Effective Date (i) certifying that, before and after giving effect (including giving effect on a pro forma basis) to the transactions contemplated by this Amendment, (A) the representations and warranties contained in Article III of the Amended Credit Agreement and the other Loan Documents are true and correct in all material respects (or in all respects in the case of any representation and warranty qualified by materiality or Material Adverse Effect) with the same effect as though made on and as of the date hereof (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date is true and correct in all material respects (or in all respects in the conditions case of any representation and warranty qualified by materiality or Material Adverse Effect) only as of such specified in Sections 4.02(a) and (b) have been satisfieddate), (B) that there has been no event Default or circumstance since the date Event of the Audited Financial Statements that has had Default exists or could be reasonably expected to havewould result therefrom, either individually or in the aggregate, a Material Adverse Effect and (C) that no actionthe Borrower is in compliance (on a pro forma basis) with the covenants contained in Section 6.12 of the Amended Credit Agreement.
(d) To the extent requested by any Lender, suitat least five (5) days prior to the Amendment No. 2 Effective Date, investigation or proceeding is pending or(i) the Administrative Agent and Lenders shall have received (x) all documentation and other information regarding the Loan Parties requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, to the knowledge extent requested in writing of the Borrower at least ten (10) days prior to the Amendment No. 2 Effective Date and (y) a properly completed and signed IRS Form W-8 or W-9, as applicable, for each Loan Party and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, any Loan PartyLender that has requested, threatened in any court or before any arbitrator or Governmental Authority that a written notice to the Borrower at least ten (110) relates days prior to the Amendment No. 2 Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date)Amendment, the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
condition set forth in this clause (ixii) the financial statements referenced in Section 5.05(a) and (bshall be deemed to be satisfied); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(be) Any fees required The Administrative Agent shall have received a favorable written opinion (addressed to be paid to the Lenders, the Administrative Agent and the Arrangers on or before Lenders and dated the Closing Date Amendment No. 2 Effective Date), which opinion shall have been paidbe substantially consistent with the opinion delivered at the original closing of the Existing Credit Agreement, in addition to covering such other matters relating to the Loan Parties, the Amended Credit Agreement, this Amendment and the transactions contemplated hereby as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsel to deliver such opinions.
(cf) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to payment of its reasonable and documented out-of-pocket expenses (including reasonable out-of-pocket fees and expenses of counsel for the proposed Closing Date specifying its objection theretoAdministrative Agent) in connection with this Amendment.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this This Agreement is subject shall not become effective, and no Fronting Bank or Lender shall have an obligation to make its initial Credit Extension hereunder, until satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or e-mails facsimiles or sent by electronic mail (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals Agreement, sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy and each Borrower as of this Agreement)the Effective Date;
(ii) a Revolving Security Agreement and Control Agreement for each Borrower executed by the parties thereto with such number of counterparts as may be requested by the Administrative Agent;
(iii) a Note executed by the Borrower(s) each Borrower in favor of each Lender requesting a Note;
(iiiiv) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers the Secretary or Assistant Secretary of each Loan Party, in each case, Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party Borrower is a party;
(ivv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party Borrower is duly organized or formed, and is validly existing and existing, in good standing (to the extent such concept is applicable) and qualified to engage in its business in the jurisdiction of organizationin which it is organized;
(vvi) a favorable opinion from each of Xxxxxx (A) Skadden, Arps, Slate, Meager & Xxxxxxx Xxxx LLP, New York counsel to the Loan PartiesBorrowers, and (B) Xxxxxxx Xxxx & Xxxxxxx, Bermuda counsel to the Borrowers, in each case addressed to the Administrative Agent Agent, the Fronting Bank and each Lender, as Lender and in form and substance reasonably acceptable to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably requestAgent;
(vivii) a certificate of a Responsible Officer of the Parent each Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party each Borrower and the validity against such Loan Party Borrower of the Loan Documents to which it is a party, and confirming that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiviii) (A) a certificate signed by a Responsible Officer of the Parent each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfied and (B) that there has been no event or circumstance since the date a certificate signed by a Responsible Officer of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority Alterra Capital certifying that (1) relates to this Agreement or any other Loan Documentsince December 31, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or 2010 there has not occurred a material adverse change in the aggregatebusiness assets, a Material Adverse Effect;
properties, results of operations or condition (viiifinancial or otherwise) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties Alterra Capital and their its Subsidiaries, taken as a whole whole; and on a consolidated basis, are Solvent(2) the current Financial Strength Rating of Alterra Bermuda;
(ix) the financial Financial Strength Rating of Alterra Bermuda shall be A- or better;
(x) a Borrowing Base Certificate for each Borrower executed by a Responsible Officer of such Borrower calculated as of the most recent Business Day in accordance with the requirements hereof and demonstrating compliance with Section 6.10 with respect to such Borrower;
(xi) the Existing Credit Agreements shall have been terminated and all loans, interest, fees and other costs and expenses due and owing through the Effective Date shall have been paid in full;
(xii) a Master Participation Agreement executed by all of the Lenders, the lenders under the Existing Credit Agreements and the Administrative Agent in form and substance satisfactory to the Administrative Agent;
(xiii) satisfactory evidence that there are no Liens on the Collateral Accounts and no financing statements referenced in Section 5.05(aor other similar filings with respect thereto other than those under the Existing Credit Agreement and Liens permitted under Sections 7.06(b) and (bn);
(xiv) a letter from the Process Agent agreeing to the terms of Section 11.14(d); and
(xxv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers Administrator, the Lender or the Required Lenders may reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Effective Date shall have been paidpaid to the extent invoiced at least one (1) Business Day prior thereto.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower Alterra Capital and Alterra Bermuda shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced at least two Business Days one day prior to or on the Closing Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Alterra Capital, Alterra Bermuda and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Effective Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Markel Corp)
Conditions of Effectiveness. The effectiveness of this Agreement amendment and restatement is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails facsimiles (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals Agreement, sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and the Borrower;
(ii) a Revolving Note executed by the Borrower(s) Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxx LLPXxxxxx, Professional Corporation, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F and such other matters concerning the Loan Parties Borrower and the Loan Documents as the Administrative Agent or the Required Lenders may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency duly completed pro forma Compliance Certificate as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Restatement Effective Date for which financial statements are available, and utilizing the covenant levels for the Fiscal Quarter ending December 2009, signed by the chief financial officer or the chief accounting officer a Responsible Officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are SolventBorrower;
(ix) reaffirmations of the financial statements referenced Collateral Documents and the Guaranty by each Loan Party (other than, in Section 5.05(a) the case of the Guaranty, the Borrower), in form and (b)substance reasonably acceptable to the Administrative Agent; and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Restatement Effective Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Restatement Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(d) The Restatement Effective Date shall have occurred on or before March 31, 2010. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.014.01 and the consent required under Section 10.01(a), each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document delivered or other matter required thereunder to be consented delivered pursuant to or approved by or acceptable or satisfactory Section 4.01(a)(v) and not to a Lender require any additional documentation under Section 4.01(a)(x), unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Restatement Effective Date specifying its requirements or objection with respect thereto.
Appears in 1 contract
Samples: Credit Agreement (McClatchy Co)
Conditions of Effectiveness. The effectiveness (a) This Amendment shall become effective as of this Agreement is subject to satisfaction or waiver the date (the “Amendment Effective Date”) that each of the following conditions precedent:precedent shall have been satisfied (or waived in accordance with Section 10.2 of the Credit Agreement):
(a1) The Administrative Agent’s receipt of the followingAgent shall have received (which may be by electronic transmission), each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts Agent, a counterpart of this Agreement Amendment which shall have been executed by the Administrative Agent, the Issuing Bank, the Lenders (it being understood that including New Lender, but excluding the Loan Parties agree to deliver after Exiting Lenders) and the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this AgreementBorrower (which may be by PDF transmission);
(ii2) a Revolving Note executed by Each of the Borrower(s) representations and warranties set forth in favor Section 6 of each Lender requesting a Notethis Amendment shall be true and correct;
(iii3) such certificates of resolutions Since December 31, 2019, no Material Adverse Effect has occurred and is continuing, or other action would reasonably be expected to have occurred and incumbency certificates of Responsible Officers of each Loan Partybe continuing;
(4) Borrower shall have paid all fees and expenses due and owing to the Lenders, in each case, as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized Sole Lead Arranger on or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel prior to the Loan PartiesAmendment Effective Date pursuant to the terms of this Amendment (including, addressed but not limited to, reasonable attorneys’ fees of counsel to the Administrative Agent and each Lender, as (but limited to such matters concerning the Loan Parties and the Loan Documents as one primary outside counsel for the Administrative Agent may reasonably requestand Sole Lead Arranger)) and any fee letter agreed upon in writing by Borrower, the Administrative Agent and the Sole Lead Arranger;
(vi5) The Administrative Agent (or its counsel) shall have received, in form and substance satisfactory to the Administrative Agent, a certificate of a Responsible Officer of each Loan Party dated as of the Parent Borrower either (A) Amendment Effective Date, attaching and certifying copies of all consentsits bylaws, licenses partnership agreement or limited liability company agreement, and approvals (other than of the resolutions referenced in clause (iii) above) required in connection with of its board of directors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance by of this Amendment and the other Loan Documents in connection therewith to which it is a party and certifying the name, title and true signature of each officer of such Loan Party and the validity against such Loan Party of executing the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii6) a certificate signed by a Responsible Officer The Administrative Agent (or its counsel) shall have received, in form and substance satisfactory to the Administrative Agent, certified copies of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedarticles or certificate of incorporation, (B) that there has been no event certificate of organization or circumstance since the date limited partnership, or other registered organizational documents of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any each Loan Party, threatened in any court together with certificates of good standing or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Documentexistence, or any as may be available from the Secretary of State of the transactions contemplated hereby or therebyjurisdiction of organization of such Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation, or (2) could reasonably be expected to have, either individually or in the aggregate, each dated as of a Material Adverse Effectrecent date;
(viii7) The Administrative Agent (or its counsel) shall have received, in form and substance satisfactory to the Administrative Agent, a Solvency Certificate signed by favorable written opinion of Txxxxxxx & Knight LLP, counsel to the chief financial officer or the chief accounting officer Loan Parties, dated as of the Parent Borrower certifying that, after giving effect Amendment Effective Date addressed to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers Issuing Bank and each of the Lenders, and covering such matters relating to the Loan Parties, the Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably may requirerequest (which opinions will expressly permit reliance by permitted successors and assigns of the Administrative Agent, the Issuing Bank and the Lenders);
(8) The Administrative Agent (or its counsel) shall have received, in form and substance satisfactory to the Administrative Agent, amendments and reaffirmations of the Collateral Documents executed by Borrower and the other Loan Parties, as applicable, in sufficient counterparts for recording, as applicable;
(9) The Administrative Agent (or its counsel) shall have received, in form and substance satisfactory to the Administrative Agent, exiting agreements executed by the Exiting Lenders acknowledging and agreeing to such Exiting Lenders no longer being party to the Existing Credit Agreement;
(10) The Administrative Agent (or its counsel) shall have received, in form and substance satisfactory to the Administrative Agent, evidence that the December 31, 2022, required redemption date with respect to the Borrower’s Preferred Units shall have been extended to a date no earlier than one year after the Commitment Termination Date; and
(11) The Administrative Agent (or its counsel) shall have received, in form and substance satisfactory to the Administrative Agent, such other documents, certificates or information as the Administrative Agent or the Required Lenders shall have reasonably requested.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of Sections 3.1 and 3.2 of the last paragraph of Section 9.03Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4.015(a), each Lender that has signed this Agreement Amendment (and its permitted successors and assigns) shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter required thereunder hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Amendment Effective Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Tengasco Inc)
Conditions of Effectiveness. The effectiveness This Amendment shall become effective as of this Agreement is subject to satisfaction or waiver the first date (the “Amendment Effective Date”) on which, and only if, each of the following conditions precedentprecedent shall have been satisfied:
(a) The Administrative Agent’s receipt Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent (x) counterparts of this Amendment executed by the Borrower, the Administrative Agent and those Lenders comprising Required Lenders or, as to any of such Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, and (y) the consent attached hereto (the “Consent”) executed by each of the followingGuarantors.
(b) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, counterparts of each of which the Pledge Agreement and the Intercreditor Agreement executed by each of the parties thereto.
(c) The Administrative Agent shall be originals have received, in form and substance reasonably satisfactory to the Administrative Agent (a) a certificate of each Loan Party and of each general partner or e-mails (managing member thereof certifying as to the matters required by the certificate described in a .pdf formatSection 3.01(a)(viii) or telecopies (of the Existing Credit Agreement, in each casecase as of the Amendment Effective Date, followed promptly by originals(b) unless otherwise specified, a certificate of the Secretary or an Assistant Secretary of each properly executed by a Loan Party (or Responsible Officer of the signing general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the general partner or managing member of such Loan Party, authorized to sign this Amendment and each dated Loan Document to which it is or is to be a party and the Closing other documents to be delivered hereunder and thereunder and (c) certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by this Amendment and each Loan Document contemplated hereby to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(d) The Administrative Agent shall have received confirmation from DB as administrative agent under the Revolving Credit Agreement that DB is satisfied that all filings necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Pledge Agreement will be made promptly following the Amendment Effective Date (orit being acknowledged that DB as administrative agent under the Revolving Credit Agreement is performing the diligence with respect to the Collateral and taking the actions necessary or desirable to perfect the security interest therein).
(e) The Administrative Agent shall have received, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
Agent, (i) executed counterparts an amendment of this the Revolving Credit Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
and (ii) a Revolving Note executed by an amendment to the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each 5 Year Term Loan PartyAgreement, in each case, as case modifying the underlying agreement to account for the terms herein and making certain other corresponding modifications.
(f) (i) the fees provided for in Section 10 and (ii) all of the reasonable out-of-pocket expenses of the Administrative Agent may require evidencing (including the identity, authority reasonable fees and capacity expenses of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as for the Administrative Agent, ) due and payable on the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Amendment Effective Date shall have been paidpaid in full.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement amendment and restatement is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails facsimiles (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals Agreement, sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and the Borrower;
(ii) a Revolving Note executed by the Borrower(s) Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and in good standing in its jurisdiction of organizationformation or incorporation;
(v) a favorable opinion opinions of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxxx LLPXxxxxx, Professional Corporation, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F and such other matters concerning the Loan Parties Borrower and the Loan Documents as the Administrative Agent or the Required Lenders may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency duly completed pro forma Compliance Certificate as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Restatement Effective Date for which financial statements are available, and utilizing the covenant levels for the Fiscal Quarter ending March 25, 2012, signed by the chief financial officer or the chief accounting officer a Responsible Officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are SolventBorrower;
(ix) reaffirmations of the financial statements referenced Collateral Documents and the Guaranty by each Loan Party (other than, in Section 5.05(a) the case of the Guaranty, the Borrower), in form and (b)substance reasonably acceptable to the Administrative Agent; and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers Issuer or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Restatement Effective Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Restatement Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(d) The Restatement Effective Date shall have occurred on or before June 22, 2012. Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.014.01 and the consent required under Section 10.01(a), each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document delivered or other matter required thereunder to be consented delivered pursuant to or approved by or acceptable or satisfactory Section 4.01(a)(v) and not to a Lender require any additional documentation under Section 4.01(a)(x), unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Restatement Effective Date specifying its requirements or objection with respect thereto.
Appears in 1 contract
Samples: Commitment Reduction and Amendment and Restatement Agreement (McClatchy Co)
Conditions of Effectiveness. The effectiveness This Amendment, the consents and agreements set forth in Section 3 and each Second Amendment Lender’s obligation to provide the Second Amendment Term Loans pursuant to this Amendment shall become effective as of this Agreement is subject to satisfaction or waiver the first date on which all of the following conditions precedent:precedent are satisfied (or waived in accordance with Section 10.2 of the Credit Agreement):
(a) The receipt by each party hereto of a copy of this Amendment executed by the Borrower, each other Loan Party party hereto, the Lenders and the Administrative Agent’s ;
(b) receipt by the Administrative Agent (or its counsel) of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and the Lenders:
(i) amendments to the Warrants, duly executed by the parties thereto;
(ii) the Board Observation Side Letter, duly executed by Holdings and the Lenders and other Persons party thereto;
(iii) a Second Amendment BlackRock Fee Letter, duly executed by the Borrower and the Lenders party thereto;
(iv) a Perfection Certificate, dated as of the date hereof, duly executed by each Loan Party in favor of the Administrative Agent and the Lenders;
(v) results of customary lien and judgment searches with respect to each Loan Party;
(vi) a notice of prepayment with respect to $237,061,087.10 of Loans to be prepaid on the date hereof, duly executed by the Borrower;
(vii) a Notice of Borrowing with respect to the funding of any Second Amendment Loans to be made on the date hereof, duly executed by the Borrower;
(viii) a certificate of the Secretary or Assistant Secretary of each Loan Party, substantially in the form of Exhibit 3.1(b)(iii) to the Credit Agreement, attaching and certifying copies of (x) its bylaws, limited liability company agreement, declaration of sole member or partnership agreement, as applicable, or equivalent thereof, (y) its articles or certificate of incorporation, certificate of formation, articles of organization or certificate of partnership, as applicable, or equivalent thereof and (z) the resolutions of its Board of Directors, shareholders (if required) or comparable authorizations, authorizing the execution, delivery and performance of the Loan Document(s) to which it is a party and certifying the name, title and true signature of each officer of such Loan Party executing the Loan Document(s) to which it is a party;
(ix) certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of each Loan Party issued on the date hereof or as reasonably close to the date hereof as possible;
(x) written opinions of Xxxxxxxx & Xxxxx LLP and Xxxxx Day, counsel to the Loan Parties, as applicable, addressed to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and incumbency certificates of Responsible Officers of each Loan Party, in each case, as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel covering such matters relating to the Loan Parties, addressed to the Loan Documents and the transactions contemplated therein as the Administrative Agent and each Lender, as to such matters concerning the Loan Parties Lenders shall reasonably request (which opinions shall expressly permit reliance by permitted successors and the Loan Documents as assigns of the Administrative Agent may reasonably requestand the Lenders);
(vixi) a certificate certificate, substantially in the form of a Responsible Officer Exhibit 3.1(b)(vi) to the Credit Agreement, dated as of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a partydate hereof, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower Borrower, certifying that immediately after giving effect to consummation of the transactions contemplated to occur on the date hereof, (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedno Default or Event of Default exists or shall result therefrom, (B) that there has been no event or circumstance since the date all representations and warranties of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or each Loan Party set forth in the aggregate, a Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by “Material Adverse Effect Effect” or other materiality, which representations and warranties shall be true and correct in all respects) and (C) that since December 31, 2023, there shall have been no action, suit, investigation change which has had or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could would reasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect;
(viiixii) a Solvency Certificate signed by evidence satisfactory to the chief financial officer or Administrative Agent and the chief accounting officer Lenders that the Liquidity of the Parent Borrower certifying that, after giving effect to and the transactions to occur on other Loan Parties shall be no less than $50,000,000; and
(xiii) evidence of customary insurance policies and endorsements thereto maintained in accordance with Section 5.8 of the Closing Date Credit Agreement;
(including, without limitation, all Credit Extensions to occur on the Closing Date), c) the Loan Parties shall have paid all reasonable and their Subsidiaries, taken as a whole documented out-of-pocket costs and expenses of the Lenders and the Administrative Agent to the extent required to be paid under Section 10.3 of the Credit Agreement and unpaid on a consolidated basis, are Solvent;
the date hereof (ix) including the financial statements referenced in Section 5.05(a) and (battorney costs of Xxxxxxxx Xxxxxx US LLP); and
(xd) such other assuranceswithout duplication of the foregoing, certificates, documents, consents or opinions as with respect to the Administrative AgentSecond Amendment Term Loans made on the Second Amendment Effective Date, the L/C Issuers or conditions set forth in Section 3.2 of the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date Credit Agreement shall have been paidsatisfied.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of This Amendment shall become effective on the date on which the following conditions precedent:have been satisfied (the “Effective Date”):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) electronic copies unless otherwise specified, each properly executed by a Responsible Officer duly authorized officer of the signing Loan Party, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts a Borrowing Notice with respect to the extensions of this credit contemplated by Section 2 above delivered in accordance with the requirements of Section 2.02(a) of the Credit Agreement (it being understood that including without limitation the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy timing of this Agreementnotice requirements contemplated thereby);
(ii) a Revolving Note executed counterparts of this Amendment executed by each of the Borrower(s) in favor of Incremental Lenders, the Borrower, each Lender requesting a Noteother Loan Party and the Administrative Agent;
(iii) such certificates certified copies of the resolutions of the board of directors or equivalent governing body of each Loan Party approving this Amendment and the transactions contemplated hereby and ratifying each of the Loan Documents after giving effect to this Amendment and of all other documents evidencing other necessary corporate action and incumbency certificates governmental and other third party approvals and consents, if any, with respect to this Amendment and the transactions contemplated hereby;
(iv) a copy of Responsible Officers the certificate of the Secretary of State of the jurisdiction of incorporation or formation, as the case may be, of each Loan Party, dated a recent date before the Effective Date, certifying (A) as to a true and correct copy of the charter, article of formation, or such other constitutive document on file in each case, as such Secretary’s office and (B) that (1) such Loan Party has paid all franchise taxes to the Administrative Agent may require evidencing the identity, authority date of such certificate and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which (2) such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized incorporated or formed, and is validly existing formed and in good standing in its or presently subsisting under the laws of the State of the jurisdiction of organizationincorporation or formation;
(v) a favorable certificate of each Loan Party signed on behalf of such Loan Party by its President or a Vice President and its Secretary, any Assistant Secretary or a duly authorized person, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter or applicable constitutive documents of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3(a)(iii) above, (B) a true and correct copy of the bylaws, limited liability company agreement, or partnership agreement of such Loan Party as in effect on the date on which the resolutions referred to in Section 3(a)(iii) above were adopted and on the Effective Date and (C) the due incorporation or formation and good standing or valid existence of such Loan Party as a corporation, limited liability company or partnership organized or formed under the laws of the jurisdiction of its incorporation or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party;
(vi) a certificate of the Secretary, an Assistant Secretary or a duly authorized person of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Amendment;
(vii) a certificate signed by a Responsible Officer, or a duly authorized person, of the Borrower certifying as to the matters set forth in Section 3(e) below;
(viii) certificates attesting to the Solvency of the Borrower and its Subsidiaries on a consolidated basis before and after giving effect to this Amendment and the transactions contemplated hereby, from its chief financial officer.
(ix) Notes executed by the Borrower in favor of each Incremental Lender that has requested Notes at least two Business Days prior to the Effective Date;
(x) the executed opinion of Xxxxxx Xxxxxx & Xxxxxxx LLPllp, special New York counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, substantially as to such the matters concerning set forth in the Loan Parties and opinion delivered pursuant to the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer terms of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b)Amendment; and
(xxi) with respect to each improved real property currently encumbered by a Mortgage, a “Life-of-Loan” Federal Emergency Standard Flood Hazard Determination (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto), and if such other assurancesproperty is located in a special flood hazard area, certificatesevidence of flood insurance confirming that such insurance has been obtained, documents, consents or opinions as which certificate shall be in a form and substance reasonably satisfactory to the Administrative Agent, it being understood and agreed that the L/C Issuers or condition in this clause (xi) has been satisfied as of the Required Lenders reasonably may requiredate hereof.
(b) Any fees fees, costs and expenses required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Effective Date to any Agent or Incremental Lender (i) pursuant to any commitment, fee or engagement letters (including that certain fee letter dated as of May 7, 2015, among Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc., as the sole book running manager and sole lead arranger for the Incremental Facilities described herein, and the Borrower), or (ii) otherwise for which invoices have been received at least one Business Day prior to the Effective Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent Agents (directly to such counselcounsel if requested by the Agents) to the extent invoiced at least two one Business Days Day prior to or on the Closing Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing and customary post-closing proceedings included in such invoices (provided provided, that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative AgentAgents). Without limiting the generality .
(d) The payments and repayments specified in Section 2 above shall have been completed and made, as applicable.
(e) Immediately before and after giving effect to this Amendment, (i) each of the provisions representations and warranties contained in Section 6 of this Amendment, Article V of the last paragraph Credit Agreement and in any of Section 9.03the other Loan Documents shall be true and correct in all material respects on and as of the Effective Date, for purposes except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of determining compliance with such earlier date and the conditions specified representations and warranties contained in this Section 4.01, each Lender that has signed this Sections 5.05(a) and 5.05(b) of the Credit Agreement shall be deemed to have consented torefer to the most recent financial statements delivered pursuant to Sections 6.01(a) and 6.01(b), approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent as applicable and (ii) no Default shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretooccurred and be continuing.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness This Amended and Restated Credit Agreement shall become effective on and as of this Agreement is subject to satisfaction or waiver the first date (the “Restatement Effective Date”) on which all of the following conditions precedentprecedent shall have been satisfied:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals original, or e-mails mail (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that and the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement)Guaranty;
(ii) a Revolving Note executed by the Borrower(s) Borrower in favor of each Lender requesting a NoteNote prior to the Restatement Effective Date;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and each Loan Party is validly existing and existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a favorable opinion of in-house counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vii) a favorable opinion of Xxxxxxx LLP, local counsel to the Loan Parties in Maryland, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viii) a certificate of a Responsible Officer of the Parent Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiix) a certificate signed by a Responsible Officer of the Parent Borrower certifying that (A1) that the conditions specified in Sections 4.02(athis Section 4.01 have been satisfied (other than those conditions contingent upon the satisfaction of the Administrative Agent and/or the Lenders with respect to certain items received by them under this Section 4.01) and (b2) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates related to the credit facility being provided under this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) that could reasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect;
(viiix) a Solvency Certificate signed by from the chief financial officer or the chief accounting officer of the Parent Borrower Loan Parties certifying that, after giving effect to the transactions to occur on the Closing Restatement Effective Date (including, without limitation, any Credit Extension to occur on the Restatement Effective Date), the REIT and its Consolidated Subsidiaries, on a consolidated basis, are Solvent;
(xi) a duly completed Compliance Certificate as of the Restatement Effective Date (giving pro forma effect to the transactions to occur on the Restatement Effective Date, including, without limitation, all Credit Extensions to occur on the Closing Effective Date), signed by a Responsible Officer of Borrower (such certificate being referred to herein as the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b“Pro Forma Restatement Effective Date Compliance Certificate”); and
(xxii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers Agent or the Required Lenders any Arranger reasonably may require.
(bi) Any All fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Restatement Effective Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Restatement Effective Date shall have been paid.
(c) The receipt by All due diligence with respect to the REIT, the Borrower and their respective Subsidiaries, in scope and determination satisfactory to the Administrative Agent of all necessary information Agent, Arrangers and the Lenders in connection with the PATRIOT Acttheir sole discretion, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Dateshall have been completed.
(d) There shall not have occurred since September 30, 2013 any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.
(e) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced at least two Business Days prior to or on the Closing first Business Day prior to the Restatement Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(f) All accrued and unpaid interest and fees with respect to the Revolving Credit Commitments and Revolving Credit Loans under the Original Credit Agreement as of (and immediately prior to giving effect to) the Restatement Effective Date shall have been, or concurrently with the extensions of credit being made hereunder on the Restatement Effective Date will be, paid in full. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that -92- has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Restatement Effective Date specifying its objection thereto. On the Restatement Effective Date, (i) the participation interests of the Revolving Credit Lenders in any outstanding Letters of Credit shall be automatically reallocated among the Revolving Credit Lenders in accordance with their respective Applicable Revolving Credit Percentages after giving effect to the Restatement Effective Date, (ii) any Revolving Credit Lender that was not a party to the Original Credit Agreement, and any Revolving Credit Lender party to the Original Credit Agreement whose Revolving Credit Commitment has increased on the Restatement Effective Date, shall pay to the Administrative Agent such amounts as are necessary to fund its new or increased Applicable Revolving Credit Percentage of all existing Revolving Credit Loans, (iii) the Administrative Agent will use the proceeds thereof to pay to all Revolving Credit Lenders whose Applicable Revolving Credit Percentage is decreasing on the Restatement Effective Date such amounts as are necessary so that each Revolving Credit Lender’s participation in existing Revolving Credit Loans will be equal to its adjusted Applicable Revolving Credit Percentage, and (iv) if the Restatement Effective Date occurs on a date other than the last day of an Interest Period applicable to any outstanding Revolving Credit Loan that is a Eurodollar Rate Loan, then the Borrower shall pay any amounts required pursuant to Section 3.05 on account of the payments made pursuant to clause (iii) of this sentence.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originalsoriginals to the extent set forth below or otherwise requested by the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyObligor, each dated the Closing Date (or, in the case of certificates of governmental officials, the Borrower’s Instruction Certificate and the Borrower Remittance Instructions, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient Agreement, in such number for distribution to each Lender requesting an originally executed copy of this Agreement)as requested by Administrative Agent;
(ii) a Revolving Note executed by the Borrower(s) Borrower in favor of each Lender requesting a NoteNote executed by the Borrower in favor of each Lender requesting a Note (which, to the extent delivered via e-mail (in a .pdf format) or telecopies, shall be followed promptly by originals);
(iii) a duly completed Borrower’s Instruction Certificate executed by a Responsible Officer of the Borrower, together with such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Obligor as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party Obligor is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party Obligor is duly organized or formed, and is validly existing and existing, in good standing and qualified to engage in business in (A) its jurisdiction of organizationorganization and (B) each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx (A) Xxxxxxxx & Xxxxxxxx LLP, as New York counsel to the Borrower, (B) Xxxxxxx X. Xxxxxx, as in-house counsel to the Parent and the Ohio Guarantors (as defined therein) and (C) Xxxxxxx LLP, as Maryland counsel to the Loan PartiesParent, each addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties Obligors and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all third-party consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party each Obligor and the validity against such Loan Party each Obligor of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such third-party consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in writing in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could has a reasonable probability of being determined adversely and if determined adversely would reasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of from the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions Borrowings to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) duly completed Borrower Remittance Instructions signed by a Responsible Officer of the Borrower;
(x) [intentionally omitted];
(xi) the financial statements referenced in Section 5.05(a) and (b); and;
(xxii) a list of all Unencumbered Pool Properties as of the Closing Date;
(xiii) such other assurances, certificates, documents, consents additional assurances or opinions certifications with respect to satisfaction of the conditions precedent in Article IV as the Administrative Agent, the L/C Issuers Agent or the Required Lenders reasonably may require; and
(xiv) the Administrative Agent and each Lender shall have received all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
(b) Any fees required hereunder or under the Fee Letter to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary outside counsel to the Administrative Agent (directly to such counselcounsel if requested by the Administrative Agent) to the extent invoiced (which invoice may be in summary form) at least two (2) Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. (a) The effectiveness of Section 2 of this Agreement is Amendment shall be subject to the satisfaction or waiver of each of the following conditions precedent:
(a1) The Administrative Agent’s receipt of Agent shall have received from the following, each of which shall be originals or e-mails (in Company and the Required Lenders a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly duly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date original (or, in if elected by the case Administrative Agent, an executed facsimile copy) of certificates this Amendment.
(2) The Administrative Agent shall have received the consent of governmental officialsthe Subsidiaries of the Company party to the Pledge Agreement, a recent date before the Closing Date) Interco Subordination Agreement, the Security Agreement and each the Subsidiary Guaranty, in form and substance satisfactory to the Administrative Agent, in their capacities as such, to the execution and delivery hereof by the Company.
(3) The Administrative Agent shall have received evidence of payment by the Company of all fees, costs and each expenses due and payable as of the Lenders:date hereof hereunder and under the Credit Agreement, including any costs and expenses payable under Section 5(g) of this Amendment (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, to the extent invoiced on or prior to the date hereof).
(i4) executed counterparts The Administrative Agent shall have received from the Company, in form and substance satisfactory to the Administrative Agent, copies of the resolutions passed by the board of directors of the Company, certified as of the date hereof by the Secretary or an Assistant Secretary of the Company, authorizing the execution, delivery and performance of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) Amendment, together with such incumbency certificates of resolutions or and/or other action and incumbency certificates of Responsible Officers of each Loan Party, in each casethe Company, as the Administrative Agent may require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer such in connection with this Agreement Amendment and the each other Loan Documents Document to which such Loan Party the Company is a party;.
(iv5) such documents and certifications as the The Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and in good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of shall have received all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which documents it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders may reasonably may requirerequest relating to any matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for For purposes of determining compliance with the conditions specified in this Section 4.014(a), each Lender that has signed executed this Agreement Amendment shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter either sent, or made available for inspection, by the Administrative Agent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless such Lender.
(c) From and after the Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(d) The Administrative Agent shall have received notice from such Lender prior to will notify the proposed Closing Date specifying its objection theretoCompany and the Lenders of the satisfaction of the conditions precedent in this Section 4.
Appears in 1 contract
Samples: Amendment Agreement (Solectron Corp)
Conditions of Effectiveness. The effectiveness of the Consents, this Agreement is Amendment and the making of the Term A-3 Loans are subject to the satisfaction or waiver of the following conditions precedent:precedent (the date of such satisfaction or waiver being the “Second Amendment Effective Date”):
(a) The the Administrative Agent’s receipt Agent shall have received copies of the following, each counterparts of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly this Amendment duly executed by a Responsible Officer of the signing each Loan Party, each dated the Closing Date Administrative Agent, the Required Lenders (or, as defined in the case of certificates of governmental officials, a recent date before Credit Agreement and as determined immediately prior to giving effect to this Amendment and the Closing DateTerm Loan A-3 Facility) and each in form of the Term A-3 Lenders;
(b) the Administrative Agent shall have received (i) an opinion of Lxxxxx & Wxxxxxx LLP, New York counsel to the Loan Parties and substance satisfactory (ii) an opinion of Bxxxxxx Xxxxx LLP, Maryland counsel to the Loan Parties, each addressed to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(iic) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iii) Administrative Agent shall have received such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement Amendment and the other Loan Documents to which Documents;
(d) the Administrative Agent shall have received copies, certified by a Responsible Officer of each Loan Party, of (i) the certificate or articles of incorporation or formation, articles of organization, or other comparable organizational instrument of such Loan Party, (ii) the by-laws or operating agreement (or the equivalent governing documents) of such Loan Party is a partyand (iii) all necessary resolutions or other action taken by the board of directors of such Loan Party to authorize the execution, delivery and performance of this Amendment by such Loan Party;
(ive) the Administrative Agent shall have received such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedvalidly existing, and is validly existing and in good standing and qualified to engage in business in its state of organization and in each jurisdiction where its ownership, lease or operation of organization;
(v) a favorable opinion properties or the conduct of Xxxxxx & Xxxxxxx LLPits business requires such qualification, counsel except to the Loan Parties, addressed extent that failure to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are do so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could not reasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect;
(viiif) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from a certificate executed by a Responsible Officer of the Borrower certifying that, as of the Second Amendment Effective Date, (i) no Default or Event of Default exists, and, immediately after giving effect to the Term Loan A-3 Facility, no Default or Event of Default exists and (ii) the Specified Representations are true and correct in all material respects (or in all respects in the case of any Specified Representation qualified by materiality or Material Adverse Effect), except to the extent that such Specified Representations specifically refer to an earlier date, in which case they were true and correct in all material respects (or in all respects in the case of any Specified Representation qualified by materiality or Material Adverse Effect) as of such earlier date;
(g) the Borrower shall have provided to the Administrative Agent and the applicable Lender the documentation and other information reasonably requested in writing by the Administrative Agent or such Lender at least ten (10) Business Days prior to the proposed Closing Second Amendment Effective Date specifying its objection theretothat is required by regulatory authorities applicable to such Lender under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, in each case at least five (5) Business Days prior to the Second Amendment Effective Date;
(h) to the extent that the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered to the Administrative Agent and any Lender, in each case to the extent reasonably requested by the Administrative Agent or such Lender in writing at least ten (10) Business Days prior to the Second Amendment Effective Date, a Beneficial Ownership Certification in relation to the Borrower, in each case at least five (5) Business Days prior to the Second Amendment Effective Date; and
(i) the Administrative Agent shall have received payment of all fees and expenses (including fees and expenses of counsel for the Administrative Agent) required to be paid by the Borrower to the Administrative Agent or any Term A-3 Lender on or prior to the Second Amendment Effective Date in connection with this Amendment; provided that invoices for such fees and expenses have been presented to the Loan Parties a reasonable period of time (and in any event not less than one (1) Business Day) prior to the Second Amendment Effective Date.
Appears in 1 contract
Conditions of Effectiveness. The effectiveness of this Agreement and the amendment and restatement of the Existing Credit Agreement as set forth herein is subject to satisfaction or waiver of the following conditions precedentprecedent that:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in -63- the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Credit Note executed by the Borrower(s) Borrower in favor of each Lender requesting a NoteRevolving Credit Note and if requested, a Swing Line Note executed by the Borrower in favor of the Swing Line Lender;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers a secretary or assistant secretary or similar officer of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in its jurisdiction of organizationincorporation or formation;
(v) a favorable customary opinion of Xxxxxx Xxxxxx, Xxxx & Xxxxxxx Xxxxxxxx LLP, counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and enforceability of the Loan Documents as and other matters reasonably requested by the Administrative Agent may reasonably requestAgent;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all third party consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party the Borrower and the validity against such Loan Party the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying certifying, as of the Closing Date, (A) that the conditions specified representations and warranties of the Loan Parties set forth in Sections 4.02(a) the Loan Documents are true and correct in all material respects (b) except to the extent that such representation and warranty is qualified by materiality, in which case they shall have been satisfiedtrue and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, (B) no Default or Event of Default has occurred and is continuing or, after giving effect to the initial Borrowing contemplated hereunder (if any) or the application of proceeds therefrom, immediately would result therefrom; and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually have or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to haveresult in, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying thatthat the Borrower (on a consolidated basis with the Subsidiaries), after giving effect to the transactions to occur on the Closing Date initial Borrowing contemplated hereunder (including, without limitation, all Credit Extensions to occur on the Closing Dateif any), the Loan Parties application of the proceeds thereof and their Subsidiariesthe consummation of the other transactions contemplated hereby, taken as a whole and on a consolidated basis, are is Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(xix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers Issuers, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid[Reserved].
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
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Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedent:.
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or originals, e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer or a duly authorized officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) an executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy counterpart of this Agreement);
(ii) a Revolving Credit Note and/or a Term Note, as applicable, in each case, duly executed by the Borrower(s) Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and each Loan Party is validly existing and existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of Xxxxxx & Xxxxxxx DLA Piper LLP (US) and Xxxx Xxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower Company either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
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Samples: Credit Agreement (W. P. Carey Inc.)
Conditions of Effectiveness. The effectiveness of this Agreement is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement (it being understood executed by each of the parties to this Agreement on the Closing Date, and counterparts of Subsidiary Guaranties executed by each Wholly-Owned Subsidiary of Holdings that the Loan Parties agree to deliver after is not on the Closing Date originals an Excluded Subsidiary, in each case sufficient in number for distribution to the Administrative Agent, each Lender requesting an originally executed copy of this Agreement)and the Borrower;
(ii) a Revolving Note executed by the Borrower(s) Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing and existing, in good standing (if applicable) and qualified to engage in business in its jurisdiction of organization;
(v) a favorable opinion organization and each other jurisdiction where its ownership, lease or operation of Xxxxxx & Xxxxxxx LLPproperties or the conduct of its business requires such qualification, counsel except to the Loan Parties, addressed extent that failure to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are do so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could not reasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect;
(viii) a Solvency Certificate signed by the chief financial officer or the chief accounting officer of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) the financial statements referenced in Section 5.05(a) and (b); and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Lenders, the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
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Conditions of Effectiveness. The effectiveness This Agreement shall become effective as of this Agreement is subject to satisfaction or waiver the first date (the “Second Amendment Effective Date”) that all of the following conditions precedentprecedent shall have been satisfied:
(a) 3.1 The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originalsoriginals to the extent set forth below or otherwise requested by the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) specified and each in form and substance satisfactory to the Administrative Agent and Agent:
(a) counterparts of this Agreement, in such number as requested by the Administrative Agent, duly executed by the Borrower, the Guarantors (including each of the New Subsidiary Guarantors), the Administrative Agent, the L/C Issuers and Lenders constituting Required Lenders:.
(i) executed counterparts of this Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to each Lender requesting an originally executed copy of this Agreement);
(ii) a Revolving Note executed by the Borrower(s) in favor of each Lender requesting a Note;
(iiib) such certificates of resolutions or other action and action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party, in each case, Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(ivc) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing and existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(vd) a favorable opinion of Xxxxxx & Xxxxxxx (i) McGuireWoods LLP, counsel to the Loan Parties, and (ii) Mxxxxxx Xxxx, in-house counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each LenderLender and L/C Issuer, as to such the matters concerning the Loan Parties Parties, this Agreement and the other Loan Documents as the Administrative Agent may reasonably request;
(vie) a certificate of a Responsible Officer of the Parent Borrower either to the effect that (Ai) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) 3.2 and 3.3 have been satisfied and (bii) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, occurred and is continuing which constitutes a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have, either individually or in the aggregate, a Material Adverse EffectDefault;
(viiif) a Solvency Certificate signed by the chief financial officer or the chief accounting officer fully executed copy of the Parent Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are SolventIntercreditor Agreement;
(ixg) a fully executed copy of an amendment, in each case dated as of (or prior to) the financial statements referenced Second Amendment Effective Date, to each of the following (each as defined in Section 5.05(athe Intercreditor Agreement):
(i) and the Regions Term Loan Agreement;
(b)ii) the Huntington Term Loan Agreement;
(iii) the PNC Term Loan Agreement; and
(xiv) the Prudential Note Agreement; and
(h) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
3.2 The representations and warranties contained in Section 4 are correct on and as of the Second Amendment Effective Date, as though made on and as of such date other than any such representations or warranties that, by their terms, refer to another date, in which case such representations and warranties shall have been correct as of such other date.
3.3 There shall not have occurred since December 31, 2017, any event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect (b) Any fees required to be paid excluding any event or circumstance resulting from the COVID-19 pandemic to the Lenders, extent such event or circumstance has been publicly disclosed by the Borrower in its securities filings or disclosed in writing by the Borrower to the Administrative Agent and the Arrangers Lenders prior to the Second Amendment Effective Date, and the scope of such adverse effect is no greater than that which has been disclosed).
3.4 The Administrative Agent and each Lender shall have received all documentation and other information that the Administrative Agent or such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S. Patriot Act, and the Beneficial Ownership Regulation, in each case, to the extent requested at least five Business Days prior to the Second Amendment Effective Date.
3.5 Any fees owed to any Lender or Arranger required to be paid on or before the Closing Second Amendment Effective Date shall have been paid.
(c) The receipt by the Administrative Agent of all necessary information in connection with the PATRIOT Act, “know your customer” requirements, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification, if requested), and other customary requirements, in each case to be delivered by the Loan Parties not later than five Business Days prior to the Closing Date to the extent such information is requested not later than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel) to the extent invoiced at least two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
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