Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of its Loans hereunder is subject to satisfaction of the following conditions precedent: (a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; (ii) a Note executed by the Borrower in favor of each Lender requesting a Note; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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; (v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx 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 request; (vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017; (viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower; (ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; (x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and (xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require. (b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan). (c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent). (d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01. (e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof. (f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11. (g) There shall not have occurred any 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. (h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect. (i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof. (j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 3 contracts
Samples: Credit Agreement (Pebblebrook Hotel Trust), Credit Agreement (Pebblebrook Hotel Trust), Credit Agreement (Pebblebrook Hotel Trust)
Conditions of Initial Borrowing. The effectiveness of this Agreement, the amendment and restatement of the Original Credit Agreement and the obligation of each Lender to advance make Revolving Loans and the Borrowings on obligation of the Closing Date Issuing Lender to issue Letters of its Loans hereunder Credit hereunder, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies the Amendment Effective Date (followed promptly by originals) unless otherwise specified) and, except for the Revolving Credit Notes and any certificates or instruments required to be delivered under the Borrower Pledge and Security Agreement and the Subsidiary Pledge and Security Agreement, in sufficient copies for each properly Lender:
(i) a Revolving Credit Note for each Lender with a Revolving Credit Commitment that is a party hereto as of the Amendment Effective Date, in the amount of such Lender's Revolving Credit Commitment; and a Swingline Note for the Swingline Lender, in the amount of the Swingline Commitment, in each case duly completed in accordance with the relevant provisions of SECTION 2.4 and executed by a Responsible Officer the Borrower;
(ii) the Subsidiary Guaranty, duly completed and executed by each of the signing Loan PartyWholly Owned Subsidiaries of the Borrower (other than Eclipsys Limited);
(iii) the Borrower Pledge and Security Agreement, duly completed and executed by the Borrower, and the Subsidiary Pledge and Security Agreement, duly completed and executed by each dated of the Closing Subsidiaries of the Borrower (other than Eclipsys Limited), in each case together with any certificates evidencing the interests being pledged thereunder as of the Amendment Effective Date and undated stock powers for any such certificate, duly executed in blank, and any promissory notes being pledged thereunder, duly endorsed in blank (or, in the case of certificates uncertificated interests, appropriately completed and duly executed instructions for registration and notification thereof);
(iv) the favorable opinion of governmental officialsHale xxx Dorr XXX, a recent date before special counsel to the Closing DateBorrower and its Subsidiaries, in substantially the form of EXHIBIT I, addressed to the Agent and the Lenders and addressing such other matters as the Agent or any Lender may reasonably request; and
(v) the Subordination Agreement, duly executed by the Borrower and each of the parties thereto.
(b) The Agent shall have received a certificate, signed by the chief executive officer, president or chief financial officer of the Borrower, in form and substance satisfactory to the Administrative Agent and each of the Lenders:
Agent, certifying that (i) executed counterparts all representations and warranties of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower contained in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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 Credit Documents are true and correct as of the Amendment Effective Date, and (ii) no Default or Event of Default has occurred and is continuing.
(c) The Agent shall have received a certificate of the secretary or an assistant secretary of the Borrower, in form and substance satisfactory to which such Loan Party the Agent, certifying (i) that attached thereto is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete copy of the certificate of incorporation and all amendments thereto of the Borrower, certified as of a recent date by the appropriate Governmental Authority Secretary of State of the state or other jurisdiction State of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedDelaware, and that each the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the Loan Parties is validly existing, in good standing bylaws of the Borrower 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lenderall amendments thereto, as in effect on the date of such certificate and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such matters concerning certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the Loan Parties and board of directors of the Loan Documents as the Administrative Agent may request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with Borrower authorizing the execution, delivery and performance by such Loan Party the Borrower of this Agreement and the validity against such Loan Party of the Loan other Credit Documents to which it is a party, and such consents, licenses as to the incumbency 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 genuineness of the signature of each officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) have been satisfied, (B) that there has been no event executing this Agreement or circumstance since the date any 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended such other Credit Documents on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer behalf of the Borrower;.
(ixd) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) The Agent shall have received a certificate executed by a Responsible Officer of the Borrower as secretary or an assistant secretary of the Closing Dateeach Subsidiary, in form and substance satisfactory to the Administrative Agent, regarding certifying (i) that attached thereto is a true and complete copy of the Solvency certificate or articles of incorporation and all amendments thereto of such Subsidiary, certified as of a recent date by the Secretary of State (Aor other similar official) of such Subsidiary's jurisdiction of incorporation, and that the Borrowersame has not been amended since the date of such certification, (Bii) each that attached thereto is a true and complete copy of the other Loan Partiesbylaws of such Subsidiary, as in effect on the date of such certificate and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, and (Ciii) that attached thereto is a true and complete copy of the Consolidated Parties resolutions adopted by the board of directors of such Subsidiary authorizing the execution, delivery and performance by such Subsidiary of the Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of such Subsidiary executing any of such Credit Documents on a consolidated basis; and
(xi) behalf of such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may requireSubsidiary.
(be) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date The Agent shall have been paid received (provided such fees may be paid from i) a certificate as of a recent date of the proceeds good standing of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties each of the Borrower and each other Loan Party contained in Section 5 or any other Loan Documentof its Subsidiaries under the laws of its jurisdictions of incorporation, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality certificate as of a recent date of the provisions qualification of the last paragraph each 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.the
Appears in 2 contracts
Samples: Credit Agreement (Eclipsys Corp), Credit Agreement (Eclipsys Corp)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of its Loans hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx 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 request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One US Bank Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 (Pebblebrook Hotel Trust), Credit Agreement (Pebblebrook Hotel Trust)
Conditions of Initial Borrowing. The obligation of each Lender to advance make the Borrowings on Revolving Loans (other than Revolving Loans under the Closing Date Archer Facilities) axx xxx Tranche A-1 Term Loans in connection with the initial Borrowing hereunder, and the obligation of its Loans hereunder the Issuing Bank to issue Letters of Credit hereunder, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orunless otherwise specified) and, except for the Notes and the certificates and instruments required to be delivered under the Escrow and Security Agreement, in sufficient copies for each Lender:
(i) (x) a Tranche A-1 Term Note for each Tranche A Lender that is a party hereto as of the Closing Date, in an amount equal to two-thirds (2/3) of such Lender's Tranche A Commitment, and (y) a Revolving Credit Note for each Revolving Lender that is a party hereto as of the Closing Date, in the amount of such Lender's Revolving Credit Commitment, in each case duly completed in accordance with the relevant provisions of certificates Section 2.4 and executed by the Borrower;
(ii) the Guaranty, duly completed and executed by the Parent;
(iii) the Borrower Escrow and Security Agreement, duly completed and executed by the Borrower, together with UCC-1 financing statements duly executed by the Borrower; and
(iv) the favorable opinions of governmental officialsLeBoeuf, Lamb, Greene & MacRae, X.X.P., xxxxial counsel to the Parent and the Borrower, and of Kathleen M. Caxxxxx, Xxxx Xxxxxxxxx, Xxneral Counsel and Secretary of Borrower and Parent, in substantially the form of Exhibits E-1 and E-2, respectively, addressed to the Agent and the Lenders, and addressing such other matters as the Agent or any Lender may reasonably request.
(b) The Agent shall have received a recent date before certificate, signed by the Closing Date) and each chief executive officer or chief financial officer of the Borrower, in form and substance satisfactory to the Administrative Agent and each of the Lenders:
Agent, certifying that (i) executed counterparts all representations and warranties of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower contained in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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 Credit Documents are true and correct as of the Closing Date, both immediately before and after giving effect to which such Loan Party the extinguishment of the Fleet Indebtedness, the making of the Tranche A-1 Term Loans hereunder and the application of the proceeds thereof, (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the extinguishment of the Fleet Indebtedness, the making of the Tranche A-1 Term Loans hereunder and the application of the proceeds thereof, and (iii) both immediately before and after giving effect to the extinguishment of the Fleet Indebtedness, the making of the Tranche A-1 Term Loans hereunder and the application of the proceeds thereof, no Material Adverse Change has occurred since December 31, 1995, and there exists no event, condition or state of facts that could reasonably be expected to result in a Material Adverse Change.
(c) The Agent shall have received certificates dated as of the Announcement Date of the secretary or an assistant secretary of the Borrower and the Parent, in form and substance satisfactory to the Agent, certifying (i) that attached thereto is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete copy of the certificate of incorporation and all amendments thereto of each of the Borrower and the Parent, certified as of a recent date by the appropriate Governmental Authority Secretary of State of the state or other jurisdiction State of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedDelaware, and that each the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the Loan Parties is validly existing, in good standing bylaws of the Borrower 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each LenderParent, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such matters concerning certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the Loan Parties board of directors of the Borrower and the Loan Documents as the Administrative Agent may request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with Parent authorizing the execution, delivery and performance by such Loan Party and of this Agreement, the validity against such Loan Party of the Loan other Credit Documents to which it is a party, and (to the extent necessary or appropriate as of the Closing Date) the other Transaction Documents to which it is a party, and (iv) as to the incumbency and genuineness of the signature of each officer of the Borrower and the Parent executing this Agreement or any of the other Credit Documents, and attaching all such consentscopies of the documents described above.
(d) The Agent shall have received, licenses on or prior to the Announcement Date, a certificate as of a recent date of the good standing of each of the Borrower and approvals the Parent, under the laws of the State of Delaware, from the Secretary of State of Delaware.
(e) All approvals, permits and consents of any Governmental Authorities or other Persons required in connection with the execution and delivery of this Agreement and the other Credit Documents and the consummation of the transactions contemplated herein and therein shall have been obtained (without the imposition of conditions that are not reasonably acceptable to the Agent), and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in full force and effecteffect and the Agent shall have received such copies thereof as it shall have requested; all applicable waiting periods shall have expired without any adverse action being taken by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before, and no order, injunction or decree shall have been entered by, any court or other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or (B) stating that no such consentsis otherwise related to or arises out of, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d)this Agreement, (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each any of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Credit Documents or the Required Lenders reasonably may require.
consummation of the Transactions (b) Any fees required to be paid hereunder other than the Acquisition), or under that, in the Fee Letters on or before opinion of the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any event or circumstance since the date of the Audited Financial Statements that has had or could otherwise be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected likely to have a Material Adverse Effect.
(if) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each evidence in form and substance reasonably satisfactory to it that all filings, recordings, registrations and other actions (including, without limitation, the Administrative Agent. Without limiting filing of duly completed UCC-1 financing statements in each jurisdiction necessary or, in the generality reasonable opinion of the provisions Agent, desirable to perfect the Liens created by the Escrow and Security Agreements) shall have been completed, or arrangements satisfactory to the Agent for the completion thereof shall have been made.
(g) Since December 31, 1995, both immediately before and after giving effect to the consummation of the last paragraph transactions contemplated by this Agreement, there shall not have occurred any Material Adverse Change or any event, condition or state of Section 9.03facts that could reasonably be expected to result in a Material Adverse Change.
(h) The Borrower shall have paid to First Union such fees which, for purposes by the terms of determining compliance the Fee Letter are due and payable on or prior to the Closing Date and all other fees and expenses of the Agent and the Lenders required hereunder or under any other Credit Document to be paid on or prior to the Closing Date (including fees and expenses of counsel) in connection 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 and the Administrative Transactions.
(i) The Agent shall have received notice an Account Designation Letter, together with written instructions from such Lender prior an Authorized Officer of the Borrower, including wire transfer information, directing the payment of the proceeds of the initial Loans to be made hereunder.
(j) The Agent shall have received evidence satisfactory to it that, concurrently with the making of the Tranche A-1 Term Loans hereunder, all principal, interest and other amounts outstanding with respect to the proposed Closing Date specifying its objection theretoFleet Indebtedness shall be repaid and satisfied in full and all commitments to extend credit under the agreements and instruments relating thereto shall be terminated.
Appears in 2 contracts
Samples: Credit Agreement (Chartwell Re Corp), Credit Agreement (Chartwell Re Holdings Corp)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of ------------------------------- make its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Principal Officer of the signing Loan Partyapplicable 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 Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note, each in a principal amount equal to such Lender's Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Principal Officers of each Loan Party FMC and Technologies as the Administrative Agent may require evidencing request to establish the identity, identities of and verify the authority and capacity of each Responsible Principal Officer thereof authorized to act as a Responsible Principal Officer in connection with this Agreement and the other Loan Documents to which such Loan Party FMC or Technologies is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications evidence as the Administrative Agent may reasonably require request to evidence that each Loan Party is duly organized or formed, and verify that each of the Loan Parties FMC and Technologies is duly incorporated, validly existing, existing and in good standing in its jurisdiction of incorporation, including certified copies of the certificate of incorporation and qualified to engage bylaws of each of FMC and Technologies and certificates of good standing for each of FMC and Technologies in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationincorporation;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx 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 request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Principal Officer of the Borrower certifying FMC (A) certifying that the conditions specified in Sections 4.01(d), (e4.03(a) and (fb) have been satisfied, (B) certifying that there has been no event or circumstance since the date of the Audited Financial Statements that December 31, 2000, which has had or could be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; , and (Cc) a calculation showing the Debt Ratings of FMC on the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017Closing Date;
(viiivi) a duly completed Compliance Certificate as an opinion of Xxxxxx X. Xxxxxxx, Associate General Counsel of FMC, substantially in the last day form of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the BorrowerExhibit C;
(ixvii) evidence that all insurance required an opinion of Xxxxx, Xxxxx & Xxxxx, counsel to be maintained pursuant to FMC and Technologies, substantially in the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer form of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basisExhibit D; and
(xiviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date pursuant to the Fee Letter shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any event or circumstance shall have occurred since the date of the Audited Financial Statements December 31, 2000 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 (FMC Technologies Inc), Credit Agreement (FMC Technologies Inc)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (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 Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, Intercreditor Agreement and each Lender and the BorrowerGuaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) evidence that the elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date have been satisfied and each Collateral Document set forth on Schedule 1.01B, duly executed by each Loan Party, as applicable thereto, together with evidence that all other actions, searches, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) (A) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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;
party or is to be a party on the Closing Date, and (ivB) copies of a good standing certificate from the Organization Documents applicable Governmental Authority of each Loan Party certified to be true and complete as Party’s jurisdiction of incorporation, organization or formation, each dated a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower prior to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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 qualificationDate;
(v) a favorable an opinion of from Xxxxxxx Xxxxxxx & Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, addressed in form and substance acceptable to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may request;Agent; and
(vi) a certificate copies of a Responsible Officer of recent Lien searches in each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection jurisdiction reasonably requested by the Collateral Agent 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 consents, licenses or approvals are so required;Parties.
(viib) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) All fees and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance expenses required to be maintained pursuant to paid hereunder, under the Loan Documents has Fee Letter shall have been obtained and is paid in effect;full in cash or will be paid on the Closing Date out of the initial Borrowing.
(xc) a certificate executed by a Responsible Officer Concurrently with the consummation of the Transactions, Borrower as of shall consummate and enter into the Closing DateSecond Lien Credit Agreement and the Second Lien Loan Documents, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereofunaudited consolidated balance sheets and related statements of operations dated as of October 17, 2012 (the “Unaudited Financial Statements”).
(je) The Parent REIT and the Borrower Administrative Agent shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment received at least three Business Days prior to the Senior NotesClosing Date all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, each including the USA PATRIOT Act that has been reasonably requested at least 10 Business Days in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality advance of the provisions Closing Date.
(f) The Administrative Agent shall have received title information covering enough of the last paragraph of Section 9.03Borrowing Base Properties evaluated by the initial Reserve Report, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender so 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 reasonably satisfactory title information on the proposed Closing Date specifying its objection theretoBorrowing Base Properties.
(g) The Administrative Agent shall have received the Initial Reserve Report.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Royal Resources Partners LP), First Lien Credit Agreement (Royal Resources Partners LP)
Conditions of Initial Borrowing. The obligation of each Lender to advance make the Borrowings on the Closing Date of its initial Loans hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Term Note executed by the Borrower in favor of each Lender requesting a Term Note;
(iii) such certificates a security agreement, in substantially the form of resolutions or Exhibit F (together with each other actionsecurity agreement and security agreement supplement delivered pursuant to Section 6.12, incumbency certificates and/or other certificates of Responsible Officers of in each case as amended, the “Security Agreement”), duly executed by each Loan Party as Party, together with (A) certificates and instruments representing certificated Equity Interests that constitute Collateral accompanied by undated stock powers or instruments of transfer executed in blank, (B) proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may require evidencing deem necessary or desirable in order to perfect the identityLiens created under the Security Agreement, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer covering the Collateral described in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
Security Agreement, (ivC) certified copies of the Organization Documents of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searches, each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state listing all effective financing statements, lien notices or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary comparable documents (together with copies of such Borrower to be true financing statements and correct documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of the Closing Date business and such other documents searches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens), (D) a Perfection Certificate, in substantially the form of Exhibit G, duly executed by each of the Loan Parties, (E) evidence that all other actions, recordings and certifications as filings that the Administrative Agent may reasonably require deem necessary in order to evidence that each Loan Party is have a perfected first priority security interest (subject to the ABL Intercreditor Agreement) in the Collateral (including receipt of duly organized or formedexecuted payoff letters and UCC-3 termination statements) shall have been taken, and that each of the Loan Parties is validly 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx 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 request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ixF) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer , together with the certificates of the Borrower as of the Closing Dateinsurance, in form and substance satisfactory to naming the Administrative Agent, regarding on behalf of the Solvency 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 to the extent any security interest in the Collateral (Aother than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office or the delivery of certificates evidencing Equity Interests) is not provided on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so, (Bthe provision of such perfected security interest(s) each shall not constitute a condition precedent to the availability of the other Loan Parties, and (C) Term Facility on the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees Closing Date but shall be required to be paid hereunder or under the Fee Letters on or before delivered no later than ninety (90) days after the Closing Date shall have been paid (provided or such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived later period as agreed to by the Administrative Agent);
(iv) executed counterparts of the ABL Intercreditor Agreement;
(v) [reserved];
(vi) a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement (as each such term is defined in Security Agreement and to the extent applicable) (together with each other intellectual property security agreement delivered pursuant to Section 6.12, in each case as amended, the Borrower shall have paid “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all reasonable fees, charges and disbursements of counsel to action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken (directly to such counsel if requested by the Administrative Agent) subject to the extent invoiced 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 proviso in clause (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agentiii) above).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 (Callaway Golf Co), Credit Agreement (Callaway Golf Co)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings make its Term Loan hereunder on the Closing Date of its Loans hereunder is subject to the prior or substantially concurrent satisfaction or waiver pursuant to Section 11.01 of the following conditions precedentconditions:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 and the Perfection Certificate by each of the parties thereto;
(A) the Security Agreement and the Pledge Agreement, sufficient each duly executed by each Loan Party party thereto, together with:
(B) the certificate representing the Pledged Equity referred to in number for distribution the Swedish Pledge Agreement accompanied by an undated stock power executed in blank or endorsement (to the extent not previously delivered to the Administrative Agent),
(C) UCC financing statements in form satisfactory to the Administrative Agent for filing under the Uniform Commercial Code of all jurisdictions in which any Loan Party is organized, each Lender and
(D) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Collateral Documents has been taken (including receipt of duly executed payoff letters and the BorrowerUCC-3 termination statements);
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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;
(iii) good standing or active status certificates, as applicable, of each Loan Party in its jurisdiction of organization and, to the extent reasonably requested by the Administrative Agent, bring-down good standing or active status certificates, as applicable;
(iv) copies an opinion (A) of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx & Xxxxxxx LLP, counsel to the Loan Parties and (B) Swedish counsel to the Loan Parties, addressed each in form and substance reasonably 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 requestAgent;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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;
(viiv) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (fe) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viiivi) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, certificate signed by a Responsible Officer of the BorrowerBorrower certifying that, after giving effect to the Transaction, the Loan Parties on a Consolidated basis are Solvent;
(vii) certificates of insurance naming the Collateral Agent, on behalf of the Lenders, 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 constitute Collateral as may be requested by the Administrative Agent;
(viii) a copy of the ABL Credit Agreement executed by the parties thereto;
(ix) evidence that all insurance required to be maintained pursuant to executed counterparts of the Loan Documents has been obtained and is in effectIntercreditor Agreement from each of the parties thereto;
(x) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a certificate executed by a Responsible Officer date reasonably satisfactory to the Collateral Agent) indicating the absence of Liens on the assets of the Borrower as of Loan Parties, except for Permitted Liens and Liens for which termination statements and releases or subordination agreements are being tendered on the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) duly executed payoff letter, in form and substance reasonably satisfactory to it, confirming that the Existing Term Loan Facility has been, or concurrently with the Closing Date is being, terminated and all Liens securing obligations thereunder have been, or concurrently with the Closing Date are being released; and
(xii) such other assurances, certificates, documents, consents or opinions opinion as the Administrative Agent or the Required Lenders may reasonably may require.
(b) Any fees required Evidence satisfactory to be paid hereunder the Administrative Agent that the Existing ABL Facility has been, or under the Fee Letters on or before concurrently with the Closing Date shall is being, terminated and all Liens securing obligations thereunder have been paid (provided such fees may be paid from been, or concurrently with the proceeds of such initial Loan)Closing Date are being, released.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel Evidence satisfactory to the Administrative Agent (directly to such counsel if requested by that the Administrative Agent) to the extent invoiced prior to Existing Mezzanine Notes have been, or on concurrently with 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 Borrower and the Administrative Agent)Date are being repaid.
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such LoanClosing 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, exist or would result from, from such proposed Borrowing Term Loan or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(jg) The Parent REIT and the Borrower Lenders shall have entered into (i) the PNC Facilityreceived, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notesextent requested, each in form all documentation and substance reasonably satisfactory to other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Administrative AgentUSA PATRIOT Act. Without limiting the generality of the provisions of the last paragraph of Section 9.039.07, 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 (Container Store Group, Inc.), Credit Agreement (Container Store Group, Inc.)
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings initial Borrowing hereunder, and the obligations of the Issuing Lender to issue Letters of Credit hereunder on the Closing Date of its Loans hereunder Date, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies (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 Dateunless otherwise specified) and each in form and substance satisfactory to such number of copies as the Administrative Agent and each of the Lendersshall have requested:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agentextent requested by any Lender in accordance with Section 2.4(d), a Note or Notes for such Lender, in each Lender case duly completed in accordance with the provisions of Section 2.4(d) and executed by the Borrower;
(ii) a Note the Guaranty, duly completed and executed by each Subsidiary; provided that no Foreign Subsidiary shall be required to execute the Guaranty to the extent that the execution of the Guaranty by such Foreign Subsidiary would result in material adverse federal income tax consequences for the Borrower as determined by whether the execution of the Guaranty by such Foreign Subsidiary would constitute an investment of earnings in favor United States property under Section 956 (or any successor statute) of each Lender requesting a Notethe Code which would trigger an increase in the gross income of the Borrower pursuant to Section 951 (or any successor provision) of the Code without corresponding credits or other offsets;
(iii) the Security Agreement, duly completed and executed by the Borrower and each Subsidiary (other than any Foreign Subsidiary), together with any certificates evidencing the Capital Stock being pledged thereunder as of the Closing Date and undated assignments separate from certificate for any such certificates certificate, duly executed in blank;
(iv) Assignments and Grants of resolutions or other actionSecurity Interests for the federally registered Intellectual Property referred to in Annexes D, incumbency certificates and/or other certificates E and F of Responsible Officers the Security Agreement, in substantially the form of Exhibits B and C (as applicable) to the Security Agreement, in each Loan Party as case duly completed and executed by each applicable Credit Party; and
(v) the favorable opinions of Akerman Senterfitt LLP, counsel to the Borrower, in form and substance reasonably satisfactory to the Administrative Agent.
(b) The Administrative Agent may require evidencing shall have received a certificate, signed by the identitychief executive officer or the chief financial officer of the Borrower, authority dated the Closing Date and capacity in form and substance reasonably satisfactory to the Administrative Agent, certifying that (i) all representations and warranties of each Responsible Officer thereof authorized to act as a Responsible Officer the Credit Parties contained in connection with this Agreement and the other Loan Credit Documents to which such Loan Party is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be are true and correct as of the Closing Date Date, both immediately before and such other documents and certifications as after giving effect to the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedconsummation of transactions contemplated hereby, and that each the making of the Loan Parties initial Loans and the application of the proceeds thereof (except to the extent any such representation or warranty is validly existingexpressly stated to have been made as of a specific date, in good standing which case such representation or warranty shall be true and qualified to engage in business in each jurisdiction where its ownershipcorrect as of such date), lease (ii) no Default or operation Event of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx Default has occurred and Xxxx LLPis continuing, counsel both immediately before and after giving effect to the Loan Partiesconsummation of transactions contemplated hereby, addressed the making of the initial Loans and the application of the proceeds thereof, (iii) both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans and the application of the proceeds thereof, no Material Adverse Effect has occurred since December 31, 2009, other than what previously has been delivered to the Administrative Agent and each Lender, as to such matters concerning in the Loan Parties and the Loan Documents as the Administrative Agent may request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 partyBorrower’s financial statements, and such consentsthere exists no event, licenses and approvals shall condition or state of facts that could reasonably 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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 haveresult in, either individually or in the aggregate, a Material Adverse Effect; , and (Civ) all conditions to the initial extensions of credit hereunder set forth in this Section 4.1 and in Section 4.2 have been satisfied or waived as required hereunder.
(c) The Administrative Agent shall have received a calculation certificate of the Consolidated Leverage Ratio as secretary or an assistant secretary of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan each Credit Party executing any Credit Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, dated the Closing Date and in form and substance reasonably satisfactory to the Administrative Agent, regarding certifying (i) that attached thereto is a true and complete copy of the Solvency articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of such Credit Party, certified as of a recent date by the Secretary of State (Aor comparable Governmental Authority) of its jurisdiction of organization, and that the Borrowersame has not been amended since the date of such certification, (Bii) each that attached thereto is a true and complete copy of the other Loan Partiesbylaws, operating agreement or similar governing document of such Credit Party, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, and (Ciii) that attached thereto is a true and complete copy of resolutions adopted by the Consolidated Parties on board of directors (or similar governing body) of such Credit Party, authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a consolidated basis; and
(xi) party, and as to the incumbency and genuineness of the signature of each officer of such Credit Party executing this Agreement or any of such other assurancesCredit Documents, certificates, documents, consents or opinions as and attaching all such copies of the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent)documents described above.
(d) The representations and warranties Administrative Agent shall have received (i) a certificate as of a recent date of the Borrower and good standing of each other Loan Credit Party contained in Section 5 or executing 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 in all material respects on and Credit Documents as of the Closing Date, under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction, and (ii) a certificate as of a recent date of the qualification of each Credit Party to conduct business as a foreign corporation in such Loanjurisdictions as the Administrative Agent may have reasonably requested, except to from 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 Secretary of State (or comparable Governmental Authority) of such earlier date, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01jurisdiction.
(e) No Default shall existAll approvals, permits and consents of any Governmental Authorities or would result fromother Persons required in connection with the execution and delivery of this Agreement, such proposed Borrowing or from the application other Credit Documents and the consummation of the proceeds thereof.
(f) The Borrower transactions contemplated hereby shall have been obtained, without the imposition of conditions that are not acceptable to the Administrative Agent, and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in compliance (on a Pro Forma Basis taking into account full force and effect and the Administrative Agent shall have received such copies thereof as it shall have reasonably requested; all applicable Loan) with the financial covenants set forth waiting periods shall have expired without any adverse action being taken or threatened by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before, and no order, injunction or decree shall have been entered by, any court or other Governmental Authority, in Section 7.11.
(g) There shall not have occurred each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or to impose materially adverse conditions upon, this Agreement, any event or circumstance since the date of the Audited Financial Statements other Credit Documents or the consummation of the transactions contemplated hereby or that has had or could reasonably be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) Concurrently with the making of the initial Loans hereunder, (i) all principal, interest and other amounts outstanding under Xxxxxxx International, Inc.’s and HB Service, LLC’s (each a Subsidiary of the Borrower) existing senior credit agreement with Xxxxx Fargo Bank, National Association (the “Existing Senior Credit Facilities”), shall be repaid and satisfied in full and all guarantees relating thereto extinguished, and (ii) all commitments to extend credit under the agreements and instruments relating to the Existing Senior Credit Facilities shall be terminated.
(g) The Administrative Agent shall have received certified reports from an independent search service satisfactory to it listing any judgment or tax lien filing or Uniform Commercial Code financing statement that names the Borrower or any of the Borrower’s Subsidiaries as debtor in any of the jurisdictions listed beneath its name on Annex B to the Security Agreement, as well as lien search results with respect to Foreign Subsidiaries in their jurisdiction of organization, as reasonably requested by the Administrative Agent and the results thereof shall be reasonably satisfactory to the Administrative Agent.
(h) The absence Administrative Agent shall have received evidence in form and substance satisfactory to it that all filings, recordings, registrations and other actions (including, without limitation, the filing of any condition, circumstance, action, suit, investigation or proceeding pending or, duly completed UCC-1 financing statements in each jurisdiction listed on Annex A to the knowledge Security Agreement) necessary to perfect the Liens created by the Security Documents shall have been completed, or arrangements satisfactory to the Administrative Agent for the completion thereof shall have been made.
(i) Since December 31, 2009, both immediately before and after giving effect to the consummation of the Borrower and/or Guarantorstransactions contemplated hereby, threatened there shall not have occurred (i) a Material Adverse Effect, other than what previously has been delivered to the Administrative Agent in the Borrower’s financial statements, or (ii) any court event, condition or before any arbitrator or Governmental Authority state of facts that could reasonably be expected to have have, individually or in the aggregate, a Material Adverse Effect.
(j) The Borrower shall have paid (i) to the Arranger and Xxxxx Fargo, the fees required pursuant to Section 2.9 to be paid to them on the Closing Date, in the amounts due and payable on the Closing Date as required by the terms thereof, and (ii) all other fees and reasonable expenses of the Administrative Agent and the Lenders required hereunder or under any other Credit Document to be paid on or prior to the Closing Date (including reasonable fees and expenses of counsel) in connection with this Agreement and the other Credit Documents.
(k) The Administrative Agent shall have received copies of the draft management prepared annual financial statements (10-K) of the Borrower and its Subsidiaries, as of the Closing Date, and a certificate from a Financial Officer of the Borrower certifying that such financial statements, when finalized and delivered by the Borrower pursuant to Section 6.1(b), shall be substantially and materially in the same form of the draft management prepared annual financial statements delivered pursuant to this Section 4.1(m) (other than updated for disclosures relating to recent equity contributions and acquisitions).
(l) The Administrative Agent shall have received evidence, in form and substance satisfactory to it, that the Borrower shall have consummated the private placement of equity of the Borrower in the amount of $60,000,000 announced by the Borrower on or about March 22, 2011 (the “March Private Placement”) and shall have cash and Cash Equivalents on hand in excess of $90,000,000.
(m) The Administrative Agent shall have received a Committed Loan Notice in accordance with draft of the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes8-K intended to be filed on or about March 31, each 2011, showing on a Pro Forma Basis the consummation of the acquisition of Choice Environmental Services, Inc. and the related Equity Issuance, all as if such events had occurred on such date (the “Pro Forma Balance Sheet”), all of which shall be in form and substance reasonably satisfactory to 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 .
(n) The Administrative Agent shall have received notice evidence in form and substance satisfactory to it that all of the requirements of Section 6.7 have been satisfied, including receipt of certificates of insurance evidencing the insurance coverages described on Schedule 5.16 and naming the Administrative Agent as loss payee or additional insured, as its interests may appear.
(o) The Administrative Agent shall have received an Account Designation Letter, together with written instructions from an Authorized Officer of the Borrower, including wire transfer information, directing the payment of the proceeds of the initial Loans to be made hereunder.
(p) Each of the Administrative Agent and each Lender shall have received such Lender prior to other documents, certificates, opinions and instruments in connection with the proposed Closing Date specifying its objection theretotransactions contemplated hereby as it shall have reasonably requested.
Appears in 2 contracts
Samples: Credit Agreement (Swisher Hygiene Inc.), Credit Agreement (Swisher Hygiene Inc.)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of its Loans hereunder is subject to shall occur upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each of which shall be originals or telecopies or in an electronic format acceptable to the Administrative Agent (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan applicable Credit Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before prior to the Closing Date) and each in a form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient Agreement in such number for distribution of copies as the Administrative Agent shall have required;
(ii) to the Administrative Agentextent requested by any Lender in accordance with Section 2.4(d), a Note or Notes for such Lender, in each Lender case duly completed in accordance with the provisions of Section 2.4(d) and executed by the Borrower;
(iiiii) a Note the Guaranty, duly completed and executed by the Borrower in favor Subsidiary Guarantors, which shall include each Wholly-Owned Subsidiary of each Lender requesting a Notethe Borrower, other than any Foreign Subsidiary to the extent doing so would cause adverse tax or regulatory consequences to the Borrower;
(iiiiv) such certificates of resolutions or other actionif any LIBOR Loans are to be borrowed prior to the 3rd Business Day after the Closing Date, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing shall have received, 3 Business Days prior to the identitydate such LIBOR Loans are to be borrowed, authority a pre-funding LIBOR indemnity letter from the Borrower and capacity a completed Notice of each Responsible Borrowing;
(v) a certificate, signed by an Authorized Officer thereof authorized to act as a Responsible Officer of the Borrower, certifying that (i) all representations and warranties of the Credit Parties contained in connection with this Agreement and the other Loan Credit Documents qualified as to which such Loan Party is a party;
(iv) copies of the Organization Documents of each Loan Party certified to materiality shall be true and complete correct and those not so qualified shall be true and correct in all material respects, in each case as of the Closing Date, both immediately before and after giving effect to the transactions contemplated hereby (except to the extent any such representation or warranty is expressly stated to have been made as of a recent date by the appropriate Governmental Authority of the state specific date, in which case such representation or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to warranty shall be true and correct as of such date), (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the Closing Date transactions contemplated hereby, (iii) both immediately before and such other documents and certifications as after giving effect to the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedtransactions contemplated hereby, no Material Adverse Effect has occurred since December 31, 2009, and there exists no event, condition or state of facts that each of the Loan Parties is validly existingcould reasonably be expected to result in a Material Adverse Effect, 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;
(viv) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel all conditions to the Loan Parties, addressed to the Administrative Agent initial extensions of credit hereunder set forth in this Section 3.1 and each Lender, in Section 3.2 have been satisfied or waived as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may requestrequired hereunder;
(vi) a certificate of a Responsible Officer the secretary or an assistant secretary of each Loan Credit Party either executing any Credit Documents as of the Closing Date, certifying (Ai) attaching copies that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all consentsamendments thereto of such Credit Party, licenses certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and approvals required that the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of such Credit Party, as then in connection with effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of such Credit Party, authorizing the execution, delivery and performance by such Loan Party of this Agreement and the validity against such Loan Party of the Loan other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of such consentsCredit Party executing this Agreement or any of such other Credit Documents, licenses and approvals shall be in full force and effect, or (B) stating that no attaching all such consents, licenses or approvals are so requiredcopies of the documents described above;
(vii) a certificate signed by as of a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) have been satisfied, (B) that there has been no event or circumstance since the recent 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) a calculation good standing of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan each Credit Party executing any Credit Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to under the Administrative Agentlaws of its jurisdiction of organization, regarding from the Solvency Secretary of State (Aor comparable Governmental Authority) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basissuch jurisdiction; and
(xiviii) such a Financial Conditions Certificate executed by the chief financial officer of the Borrower containing the copies of the financial statements referred to in Section 4.11 and confirming that, as of the Closing Date, after giving effect to the consummation of the transactions contemplated hereby, the Borrower and its Subsidiaries on a consolidated basis are solvent.
(b) All approvals, permits and consents of any Governmental Authorities, any Self-Regulatory Organizations, or other assurancesPersons required in connection the consummation of any of the transactions contemplated hereby shall have been obtained, certificates, documents, consents or opinions as without the imposition of conditions that are materially adverse to the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder Lenders; all applicable waiting periods shall have expired without any adverse action being taken or under the Fee Letters on threatened by any Governmental Authority or before the Closing Date Self-Regulatory Organization having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agentinstituted, the Borrower threatened or proposed before, and no order, injunction or decree shall have paid all reasonable feesbeen entered by, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or other Governmental Authority or any Self-Regulatory Organization, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or to impose materially adverse conditions upon, this Agreement, any of the other Credit Documents or the consummation of the transactions contemplated hereby or that could reasonably be expected to have a Material Adverse Effect.
(c) The Borrower shall have (i) amended its existing Credit Agreement, dated as of January 12, 2007, as amended by the First Amendment to Credit Agreement dated as of August 24, 2007, the Second Amendment to Credit Agreement dated as of June 13, 2008, and as amended and restated by the Amendment and Restatement Agreement, dated as of April 9, 2009, with Xxxxx Fargo, as administrative agent, BofA, as syndication agent and the lenders party thereto (the “Existing 2007 Credit Facility”) to (x) permit the consummation of the transactions contemplated hereby, and (y) make certain other amendments thereto requested by the Borrower and reasonably satisfactory to the Administrative Agent and (ii) complied with all terms and conditions in the definitive documentation of such amendment.
(d) The Borrower shall have (i) amended its existing Credit Agreement, dated as of April 9, 2009, with Xxxxx Fargo, as administrative agent, BofA, as syndication agent and the lenders party thereto, providing for a revolving credit facility in the aggregate principal amount of $100,000,000 and a term loan credit facility in the amount of $200,000,000 (the “Existing 2009 Credit Facility”), to (x) permit the consummation of the transactions contemplated hereby, (y) terminate the revolving credit commitments of the lenders thereunder, and (z) make certain other amendments thereto requested by the Borrower and reasonably satisfactory to the Administrative Agent and (ii) complied with all terms and conditions in the definitive documentation of such amendment.
(i) All principal, interest and other amounts outstanding under the Borrower’s existing Credit Agreement, dated as of April 9, 2009, with ICE Trust, Xxxxx Fargo, as administrative agent, BofA, as syndication agent and the lenders party thereto, providing for a 364-day revolving credit facility in the aggregate principal amount of $300,000,000 (the “Terminating Liquidity Facility”) shall be paid in full, and (ii) all commitments to extend credit under the agreements and instruments relating to the Terminating Liquidity Facility and all guarantees relating thereto shall be terminated; and the Administrative Agent shall have received evidence of the foregoing satisfactory to it.
(f) Since December 31, 2009, both immediately before and after giving effect to the transactions contemplated hereby, there shall not have occurred (i) a Material Adverse Effect or (ii) any event, condition or state of facts that could reasonably be expected to have a Material Adverse Effect.
(g) The Borrower shall have paid (i) to the Arrangers, the fees required under the Joint Fee Letter to be paid to them on the Closing Date, in the amounts due and payable on the Closing Date as required by the terms thereof, (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Xxxxx Fargo Fee Letter, and (iii) all other fees and reasonable expenses of the Arrangers, the Administrative Agent and the Lenders required to be paid on or prior to the Closing Date (including reasonable fees and expenses of counsel) in connection with this Agreement and the other Credit Documents.
(h) The Administrative Agent shall have received a Committed Loan Notice in accordance an Account Designation Letter, together with written instructions from an Authorized Officer of the requirements hereofBorrower, including wire transfer information, directing the payment of the proceeds of any Loans made hereunder.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank Each of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 and each Lender shall have received notice from such Lender prior other documents, certificates, opinions and instruments in connection with the transactions contemplated hereby as it shall have reasonably requested (including but not limited to legal opinions of counsel to the proposed Closing Date specifying Borrower and its objection theretoSubsidiaries).
Appears in 2 contracts
Samples: Credit Agreement (Intercontinentalexchange Inc), Credit Agreement (Intercontinentalexchange Inc)
Conditions of Initial Borrowing. The obligation of each Lender to advance make the Borrowings on the Closing Date of its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (as applicable), 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 AgreementAgreement and the Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note Term Notes executed by the Borrower in favor of each Lender requesting a NoteTerm Notes;
(iii) such certificates The certificate of resolutions incorporation (or other action, incumbency certificates and/or other certificates of Responsible Officers comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may require evidencing request to establish that such Person is duly organized and existing under the identitylaws of such jurisdiction), authority and capacity of each Responsible Officer together with an English translation 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(if appropriate);
(iv) copies To the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) A certificate of the Organization Documents secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certified to be true and complete as of certifying (A) that attached thereto is a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as copy of the Closing Date by-laws (or comparable document) of such Person as in effect (or, if any such Person is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (B) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Person (or other documents comparable enabling action) and certifications continuing in effect, which (1) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (2) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (C) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) A certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) Favorable written opinions from each of the following counsel for the Borrower, the Subsidiary Guarantors and Flex’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably require request and otherwise in form and substance satisfactory to evidence that each Loan Party is duly organized or formedthe Administrative Agent:
(A) Xxxxxx, Xxxxxx-Xxxxxxx, Colt & Mosle LLP, U.S. counsel for Flex and that each of the Loan Parties is validly 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 qualificationSubsidiaries;
(vB) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx Xxx & Partners, Malaysian (including Labuan) counsel for Flex and Xxxx its Subsidiaries;
(C) Xxxxx & Xxxxxxxx, Singapore counsel for Flex and its Subsidiaries;
(D) Xxxxx Dutilh, Dutch counsel for Flex and its Subsidiaries;
(E) C & A Law, Mauritius counsel for Flex and its Subsidiaries;
(F) Dentons Europe LLP, Hungarian counsel for Flex and its Subsidiaries;
(G) Madrona Hong Mazzuco, Brazilian counsel for Flex and its Subsidiaries; and
(H) Such other local counsel to the Loan Parties, addressed to the Administrative Agent Flex and each Lender, as to such matters concerning the Loan Parties and the Loan Documents its Subsidiaries as the Administrative Agent may request;reasonably request with respect to Subsidiary Guarantors.
(viviii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 stating 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;
(viiix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements March 31, 2016 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation the current Debt Ratings, and (D) pro forma calculations of the Consolidated Leverage Debt/EBITDA Ratio as of and the last day of Interest Coverage Ratio, based upon the fiscal Borrower’s Financial Statements for the quarter of the Borrower ended on June September 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect2016;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, evidence in form and substance satisfactory to the Administrative Agent, regarding Agent that the Solvency of indebtedness under the Existing Flex Term Loan Agreement has been (A) or substantially simultaneously or concurrently with the Borrower, (B) each funding of the other Term A Loan Parties, hereunder will be) prepaid and (C) the Consolidated Parties on a consolidated basisExisting Flex Term Loan Agreement has been terminated; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative AgentAgent and subject to the Fee Letter, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, Closing Date shall be true and correct in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court on or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC FacilityNovember 30, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent2016. 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 Agreement (Flex Ltd.), Term Loan Agreement (Flex Ltd.)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly 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 each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a NoteNote at least two Business Days prior to the Closing Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the 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 the Borrower is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Borrower is duly organized or formed, and that each of the Loan Parties Borrower is validly existing, existing and in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationorganization;
(vi) a favorable an opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, in-house counsel to for the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to such matters concerning in the Loan Parties form of Exhibit E-1 and the Loan Documents as (ii) an opinion of McGuireWoods LLP, special counsel for the Administrative Agent may requestAgent, in the form of Exhibit E-2;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that there has been no event or circumstance since December 31, 2007, that has had or could be reasonably expected to have a Material Adverse Effect;
(vii) a certificate of a Responsible Officer of each Loan Party the Borrower either (Ai) attaching copies of all consents, licenses and approvals 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 (Bii) stating that no such consents, licenses or approvals are so required;
(viiviii) a certificate signed by a Responsible Officer of the Borrower certifying (A) satisfactory evidence that the conditions specified Existing 364-Day Credit Agreement shall have been, or will be substantially contemporaneously with the effectiveness of this Agreement, terminated and repaid in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrowerfull;
(ix) evidence that all insurance required such materials and information as are reasonably necessary for each Lender to be maintained pursuant to the Loan Documents has been obtained and is in effect;conduct know-your-customer due diligence; and
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions documents as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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: 364 Day Credit Agreement (Vulcan Materials CO), 364 Day Credit Agreement (Vulcan Materials CO)
Conditions of Initial Borrowing. The obligation of each Lender the Lenders or the Banker’s Guarantee Issuer, as applicable, to advance make the Borrowings on the Closing Date of its Loans Initial Term Borrowing hereunder is subject to satisfaction of the following conditions precedentprecedent except as otherwise agreed between the Borrower and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (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, sufficient in number for distribution to the Administrative Agent, each Lender and Agreement from the Borrower;
(ii) a Guaranty from each Guarantor;
(iii) the Security Agreement (Mauritius), together with evidence reasonably satisfactory to the Administrative Agent that all actions have been taken to perfect the security interests taken thereunder, including evidence that the details of the Security Agreement (Mauritius) have been inscribed in the books and records of the Borrower;
(iv) the Security Agreement (Singapore), together with evidence reasonably satisfactory to the Administrative Agent that all actions have been taken to perfect the security interest taken thereunder, including evidence that all certificates, agreements, documents and instruments required by the Collateral Documents, requirements of law or reasonably requested by the Administrative Agent have been filed, delivered, registered or recorded;
(v) the Security Agreement (US), together with evidence reasonably satisfactory to the Administrative Agent that all actions have been taken to perfect the security interests taken thereunder, including evidence that all certificates, agreements, documents and instruments, including Uniform Commercial Code financing statements, required by the Collateral Documents, requirements of law or reasonably requested by the Administrative Agent have been filed, delivered, registered or recorded;
(vi) the Pledge Agreement (US), together with evidence reasonably satisfactory to the Administrative Agent all actions have been taken to perfect the security interest taken thereunder, including certificates or other instruments representing all pledged Equity Interests (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;
(vii) the Pledge Agreement (Mauritius) together with evidence reasonably satisfactory to the Administrative Agent that all actions have been taken to perfect the security interest thereunder, which shall include:
(A) a duly executed transfer in guarantee in the form set out in Schedule 1 (Transfer in Guarantee) to the Pledge Agreement (Mauritius);
(B) a duly executed share transfer form in the form set out in Schedule 2 (Share Transfer Form) to the Pledge Agreement (Mauritius);
(C) a duly executed irrevocable proxy in the form set out in Schedule 3 (Irrevocable Proxy) to the Pledge Agreement (Mauritius);
(D) duly executed letters of resignation from each director of the Borrower in the form set out in Schedule 4 (Letter of Resignation) to the Pledge Agreement (Mauritius);
(E) duly executed letters of authorization from each director of the Borrower in the form set out in Schedule 5 (Letter of Authorization) to the Pledge Agreement (Mauritius); and
(F) evidence that details of the Pledge Agreement (Mauritius) have been inscribed in the books and records of the Borrower;
(viii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least five (5) Business Days in advance of the Signing Date;
(iiiix) such certificates (including a certificate substantially in the form of Exhibit K) of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers and/or shareholders of each Loan Party as the Administrative Agent may reasonably require evidencing (A) approval of the terms of, and transactions contemplated by, the Loan Documents 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;
(iv) copies of the Organization Documents of each Loan Party certified party or is to be true and complete as of a recent date by party on the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx 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 request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effectSigning Date;
(x) a certificate executed by from a Responsible Officer of the Borrower as attesting to and attaching evidence of the Closing Datereceipt of all required approvals, including but not limited to those from (A) the Board of Directors of the Company, (B) shareholders of the Company, (C) the Reserve Bank of India (if applicable), (D) the Bombay Stock Exchange Limited, (E) the National Stock Exchange Limited and (F) any other entity whose approval is required in relation to the Loan Documents or the Acquisition under the Delisting Regulations;
(xi) an opinion from Xxxxxxxx & Xxxxx LLP, New York counsel to the Loan Parties, Xxxx Xxxxx LLP, Pennsylvania counsel to the Loan Parties, AZB & Partners, Indian counsel to the Loan Parties, and Uteem Xxxxxxxx, Mauritius counsel to the Administrative Agent, each in a form and substance satisfactory to the Administrative Agent, regarding ;
(xii) if applicable under the Solvency of (A) the Borrower, (B) each laws of the other jurisdiction of incorporation or organization of the relevant Loan PartiesParty, and good standing certificates or certificates of status (Cto the extent such concept exists in the relevant jurisdiction) from the Consolidated Parties on a consolidated basisjurisdiction of incorporation, organization or formation of each Loan Party; and
(xixiii) such other assurances, certificates, documents, consents or opinions as the Escrow Account and DSRA shall have been established in a manner reasonably satisfactory to the Administrative Agent or the Required Lenders reasonably may requireAgent.
(b) Any All fees and out-of-pocket expenses required to be paid hereunder or under and invoiced at least 3 Business Days prior to the Fee Letters on or before date of the Closing Date Initial Term Borrowing shall have been paid (provided such fees may in full or will be paid from on the proceeds date of such initial Loan)the Initial Term Borrowing.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice all documentation and other information about the Obligor Group as has been reasonably requested in accordance with writing at least 10 days prior to the requirements hereofdate of the Initial Term Borrowing by the Administrative Agent that it 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.
(jd) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) provided a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality report from its independent auditor of the provisions type described in Section 6.17 detailing the amount of cash, Cash Equivalents and Marketable Securities held by the last paragraph Company as 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 date not more than 60 days prior to the proposed Closing Date specifying its objection theretodate of the Initial Term Borrowing.
(e) The absence of any injunction or other form of temporary restraining order with respect to the Transaction or the Facility.
Appears in 2 contracts
Samples: Credit Agreement (Igate Corp), Credit Agreement (Igate Corp)
Conditions of Initial Borrowing. The obligation of the each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 shall have received this Agreement duly executed by the Loan Parties and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(iib) a Note if requested by any Lender, the Administrative Agent shall have received for such Lender such Lender’s duly executed by Notes of the Borrower in favor of each Lender requesting a NoteBorrowers;
(iiic) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing shall have received the identity, authority and capacity Security Agreement duly executed by CECE;
(d) the Administrative Agent shall have received copies of each Borrower’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary (or comparable Responsible Officer thereof authorized to act as a Responsible Officer in connection with Officer);
(e) the Administrative Agent shall have received copies of resolutions of each Borrower’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which such Loan Party it is a partyparty and the consummation of the transactions contemplated hereby and thereby, together with specimen signatures of the persons authorized to execute such documents on each Borrower’s behalf, all certified in each instance by its Secretary or Assistant Secretary (or comparable Responsible Officer);
(ivf) the Administrative Agent shall have received copies of the Organization Documents certificates of good standing for each Loan Party certified Borrower (dated no earlier than 30 days prior to be true and complete as the date hereof) from the office of a recent date by the appropriate Governmental Authority secretary of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel with respect 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 request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative AgentCompany, the Borrower shall have paid all reasonable fees, charges and disbursements State of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.Illinois;
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.initial fees called for by Section 2.09 to be paid on the Closing Date;
(jh) The Parent REIT and the Borrower Administrative Agent shall have entered into received reasonably requested financing statement, tax, and judgment lien search results against each Borrower and its Property evidencing the absence of Liens thereon except as permitted by Section 7.01;
(i) the PNC FacilityAdministrative Agent shall have received the favorable written opinion of counsel to each Borrower, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent;
(j) each of the Lenders shall have received, sufficiently in advance of the Closing Date, all documentation and other information requested by any such Lender required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the United States Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) including, without limitation, the information described in Section 13.24; and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for each Borrower; and
(k) the Borrowers shall have delivered the Minimum Collateral Amount for the Loan requested on 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: Credit Agreement (Career Education Corp), Credit Agreement (Career Education Corp)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings make its Term Loan hereunder on the Closing Date of its Loans hereunder is subject to the prior or substantially concurrent satisfaction or waiver pursuant to Section 11.01 of the following conditions precedentconditions:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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, sufficient in number for distribution to the Administrative Agent, each Lender Agreement and the BorrowerPerfection Certificate by each of the parties thereto;
(ii) a Note the Security Agreement and the Pledge Agreement, each duly executed by each Loan Party party thereto, together with:
(A) the Borrower certificate representing the Pledged Equity referred to in favor the Swedish Pledge Agreement accompanied by an undated stock power executed in blank or endorsement (to the extent not previously delivered to the Administrative Agent),
(B) UCC financing statements in form satisfactory to the Administrative Agent for filing under the Uniform Commercial Code of each Lender requesting a Noteall jurisdictions in which any Loan Party is organized, and
(C) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Collateral Documents has been taken (including receipt of duly executed payoff letters and UCC-3 termination statements);
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents good standing or active status certificates, as applicable, of each Loan Party certified in its jurisdiction of organization and, to be true and complete as of a recent date the extent reasonably requested by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organizationAdministrative Agent, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly existing, in bring-down good standing and qualified to engage in business in each jurisdiction where its ownershipor active status certificates, lease or operation of properties or the conduct of its business requires such qualificationas applicable;
(v) a favorable an opinion (A) of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx & Xxxxxxx LLP, counsel to the Loan Parties and (B) Swedish counsel to the Loan Parties, addressed each in form and substance reasonably 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 requestAgent;
(vi) a certificate of signed by a Responsible Officer of each Loan Party either the Borrower certifying that the conditions specified in Sections 4.01(d) and (Ae) attaching copies of all consents, licenses and approvals 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 requiredhave been satisfied;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that that, after giving effect to the conditions specified in Sections 4.01(d)Transaction, (e) and (f) 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, Loan Parties on a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017basis are Solvent;
(viii) a duly completed Compliance Certificate as certificates of insurance naming the Collateral Agent, on behalf of the last day Lenders, 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 fiscal quarter of Loan Parties that constitute Collateral as may be requested by the Borrower ended on June 30, 2017, signed by a Responsible Officer of the BorrowerAdministrative Agent;
(ix) evidence that all insurance required to be maintained pursuant to a copy of the Loan Documents has been obtained and is in effectABL Credit Agreement executed by the parties thereto;
(x) a certificate executed by a Responsible Officer counterparts of the Borrower Intercreditor Agreement from each of the parties thereto;
(xi) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases or subordination agreements are being tendered on the Closing Date; and
(xii) duly executed payoff letter, in form and substance reasonably satisfactory to it, confirming that the Administrative AgentExisting Term Loan Facility has been, regarding or concurrently with the Solvency of (A) Closing Date is being, terminated and all Liens securing obligations thereunder have been, or concurrently with the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basisClosing Date are being released; and
(xixiii) such other assurances, certificates, documents, consents or opinions opinion as the Administrative Agent or the Required Lenders may reasonably may require.
(b) Any fees required Evidence satisfactory to be paid hereunder the Administrative Agent that the Existing ABL Facility has been, or under the Fee Letters on or before concurrently with the Closing Date shall is being, terminated and all Liens securing obligations thereunder have been paid (provided such fees may be paid from been, or concurrently with the proceeds of such initial Loan)Closing Date are being, released.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel Evidence satisfactory to the Administrative Agent (directly to such counsel if requested by that the Administrative Agent) to the extent invoiced prior to Existing Mezzanine Notes have been, or on concurrently with 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 Borrower and the Administrative Agent)Date are being repaid.
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such LoanClosing 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, exist or would result from, from such proposed Borrowing Term Loan or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(jg) The Parent REIT and the Borrower Lenders shall have entered into (i) the PNC Facilityreceived, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notesextent requested, each in form all documentation and substance reasonably satisfactory to other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Administrative AgentUSA PATRIOT Act. Without limiting the generality of the provisions of the last paragraph of Section 9.039.07, 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 (Container Store Group, Inc.), Credit Agreement (Container Store Group, Inc.)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its initial Loans hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly 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 each of the Lenders:
(i) executed counterparts of this Agreement, all Collateral Documents, the Guaranty and all other Loan Documents sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrowers;
(ii) a Note executed by the each Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party 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 Borrower is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party Borrower is duly organized or formed, and that each of the Loan Parties Borrower is validly 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 do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, Parties acceptable to Agent addressed to the Administrative Agent and each Lender, as to such the matters set forth concerning the Loan Parties and the Loan Documents as the Administrative Agent may requestin form and substance satisfactory to Agent;
(vi) a certificate of a Responsible Officer of each Loan Party Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party Borrower and the validity against such Loan Party 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a copy of the Audited Financial Statements and the financial statements referred to in Section 5.05(b);
(x) satisfactory surveys, appraisals (which shall demonstrate an aggregate value for the Mortgaged Property of not less than $3,750,000), environmental reports, title reports, title commitments, and other items related to the Collateral as the Agent and the Lenders shall require;
(xi) Borrowers and the holders of its Subordinated Debt shall have executed the Subordination Agreement, all Subordinated Debt shall be unsecured and have a certificate executed by maturity date no earlier than six (6) months after the Term Loan Maturity Date or Revolving Loan Termination Date (whichever is later), and Agent shall have received copies of all documents related to any Subordinated Debt, which documents shall be satisfactory to Agent and Lenders in their respective sole discretion;
(xii) a Responsible Officer of the Borrower as of the Closing Datecompleted Borrowing Base Certificate, in form form, scope and substance satisfactory to Agent and the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basisLenders; and
(xixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent and each Lender (directly to such counsel if requested by the Administrative AgentAgent or such Lender) to the extent invoiced 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 any Borrower and the Administrative AgentAgent or such Lender).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 Closing Date shall have occurred on or any other Loan Documentbefore December 30, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.012010.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) Term Loan A Commitments from Lenders in an aggregate amount of $3,500,000, with the PNC FacilityTerm Loan A Commitment of RBC Bank (USA) to be not more than $2,100,000, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment Term Loan B Commitments from Lenders in an aggregate amount of $3,000,000, with the Term Loan B Commitment of RBC Bank (USA) to be not more than $1,800,000, and (iii) Revolving Loan Commitments from Lenders in an aggregate amount of $17,500,000, with the Senior Notes, each in form and substance reasonably satisfactory Revolving Loan Commitment of RBC Bank (USA) to the Administrative Agentbe not more than $10,500,000. Without limiting the generality of the provisions of the last paragraph sentence of Section 9.039.03(d), 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 Initial Borrowing. The obligation of each Lender to advance make its initial Credit Extension hereunder, as a Committed Loan under the Borrowings on the Closing Date of its Loans hereunder Initial Borrowing, is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly 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 each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the 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 the Borrower is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Borrower is duly organized or formed, and that each of the Loan Parties Borrower is validly existing, in good standing and qualified to engage in business in the State of Maryland and 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 Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx Xxxxxxx Procter LLP, being counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit E and such other matters concerning the Loan Parties Borrower, its Subsidiaries, and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(vi) a certificate of a Responsible Officer of each Loan Party the Borrower either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) have been satisfied, 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June September 30, 20172006, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer evidence that the Borrower shall have made the Borrower’s Required Equity Contribution and that concurrently with the Closing Date and the making of the Borrower as of Initial Borrowing hereunder, the BCP Debt is being repaid in full and terminated and all Liens securing obligations under the BCP Loan Documents relating thereto have been or concurrently with the Closing Date, in form and substance Date are being released to the satisfaction of Administrative Agent;
(xi) an Original Appraisal satisfactory to the Administrative Agent, regarding Agent and the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basisLenders in all respects; and
(xixii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees paid, which payment may be paid from provided by funds advanced under the proceeds of such initial Loan)Initial Borrowing.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 1 contract
Samples: Credit Agreement (Boston Capital Real Estate Investment Trust Inc)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings make its initial Loan hereunder on the Closing Initial Borrowing Date of its Loans hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible an Authorized Officer of the signing Loan Party, each dated the Closing Initial Borrowing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Initial Borrowing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Authorized Officers of each Loan Party as the Administrative Agent may reasonably 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 this Agreement and the other Loan Documents to which such Loan Party is a party;
(ivii) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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 do so could not reasonably be expected to have a Material Adverse Effect;
(viii) a counterparts of the Guaranty executed by each Material Subsidiary;
(iv) favorable opinion opinions of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx Gxxxxxxxx Txxxxxx, LLP, special 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 and Lenders may reasonably request;
(v) evidence reasonably satisfactory to the Required Lenders that as of the Initial Borrowing Date the Borrower satisfies the Liquidity Test;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consentssuch other documents as the Administrative Agent, licenses and approvals 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, any Lender or (B) stating that no such consents, licenses or approvals are so required;their counsel may have reasonably requested; and
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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 evidence reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding Required Lenders that the Solvency Borrower has applied not less than $350,000,000 of (A) the Borrower, (B) each its own funds toward payment of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may requireConversion Price.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower Merger Agreement shall be in compliance (on a Pro Forma Basis taking into account force and effect, but the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There Merger shall not have occurred any 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 Effectbeen consummated.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 (Ivax Corp)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyCompany, 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, its legal counsel and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) a Note Notes executed by the Borrower Company in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the Company 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 partyDocuments;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other 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 each of the Loan Parties is validly existing, in good standing in its jurisdiction of organization, including certified copies of the Company’s Organization Documents, and qualified to engage in business in each jurisdiction where its ownership, lease or operation certificates of properties or the conduct of its business requires such qualificationgood standing and tax clearance certificates;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, special counsel to the Loan PartiesCompany, addressed to the Administrative Agent and each Lender, as to such matters concerning in the Loan Parties and the Loan Documents as the Administrative Agent may requestform set forth in Exhibit G;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower Company certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basiscurrent Debt Ratings; and
(xivii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 (Danaher Corp /De/)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedent:precedent (it being agreed that the following conditions precedent will be satisfied concurrently with the execution and delivery of this Agreement):
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (if applicable), 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, sufficient in number for distribution to the Administrative Agent, each Lender Agent and the BorrowerBorrowers;
(ii) a Note Notes executed by the Borrower Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly existing, existing and in good standing in its jurisdiction of organization, including a certificate from the Insurance Regulatory Authority as to the authority to do business and qualified to engage in business in each jurisdiction where its ownership, lease or operation good standing of properties or the conduct of its business requires such qualificationAflac;
(v) a favorable opinion opinions of Xxxxxxxx Xxxxxx Xxxxxxxx In-House Counsel and Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, each as counsel to the Loan Parties, addressed in form and substance acceptable to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may requestAgent;
(vi) a certificate of a Responsible Officer of each Loan Party the Parent either (A) attaching copies of all consents, licenses and approvals 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;; and
(vii) a certificate signed by a Responsible Officer of the Borrower Parent certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower Borrowers and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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: 364 Day Credit Agreement (Aflac Inc)
Conditions of Initial Borrowing. The obligation of each Lender to advance make its initial Loans available to the Borrowings on the Closing Date of its Loans Borrower hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic format (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 and the Guaranty Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a Notethat requested Notes at least two Business Days prior to the Closing Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent or its counsel may reasonably require request to evidence that each Loan Party is duly organized or formed, validly existing and that each of the Loan Parties is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationorganization;
(v) a favorable written opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, (addressed to the Administrative Agent and each Lenderthe Lenders and dated the Closing Date) of (i) Xxxx X. Xxxxxxxx, as in-house counsel to such matters concerning the Borrower and the other Loan Parties organized or existing under the laws of the United States or any state thereof, substantially in the form of Exhibit F-1, (ii) Xxxxxxx, local counsel to the Parent, substantially in the form of Exhibit F-2 and (iii) Xxxxxx Goodinge, 1in-house counsel to the Loan Parties and organized or existing under the laws of the United Kingdom, substantially in the form of Exhibit F-3, and, in the case of each such opinion required by this clause (v), covering such other matters relating to the Loan Parties, the Loan Documents or the Transactions as the Administrative Agent may Required Lenders shall reasonably request, and the Parent and the Borrower hereby request such counsel to deliver such opinions;
(vi) a certificate pro forma consolidated balance sheet of a Responsible Officer the Parent and its Subsidiaries after giving effect to the Merger as of each Loan Party either (A) attaching copies of all consentsJune 30, licenses and approvals required in connection with the execution2008, delivery and performance by such Loan Party and the validity against such Loan Party statements of income of the Loan Documents Parent and its Subsidiaries after giving effect to which it is a partythe Merger for the fiscal year ended December 31, 2007 and such consentsthe six-month period ended June 30, licenses and approvals shall be 2008, all as filed in full force and effectthe statement S-4/A of the Parent filed August 21, or (B) stating that no such consents, licenses or approvals are so required2008;
(vii) forecasts prepared by the Parent or the Borrower of balance sheets, income statements and cash flow statements of the Parent and its Subsidiaries, after giving effect to the Transactions, on a quarterly basis for the first year following the Closing Date and on an annual basis for each year thereafter during the term of this Agreement;
(viii) [reserved];
(ix) a certificate signed by a Responsible Officer of the Parent and the Borrower certifying (A) that certifying the conditions specified in Sections 4.01(d)current Debt Ratings, (e) which shall be not less than BBB- from S&P and (f) have been satisfiednot less than Baa3 from Xxxxx’x, and neither of such Debt Ratings shall be on “negative watch,” and (B) demonstrating that, pro forma for all elements of the Transactions to be effected on or before the Closing Date, the Consolidated Leverage Ratio is not greater than 3.75 to 1.00;
(x) evidence that there all Existing Material Indebtedness has been no event or circumstance since concurrently with the date Closing Date is being terminated and all Liens securing obligations under any Existing Material Indebtedness have been or concurrently with the Closing Date are being released; and
(xi) the funding indemnity letter referenced in Section 2.02(f), which shall have been received within the time prior to the Closing Date as required in such section.
(b) The Merger shall be consummated prior to or concurrently with the initial Borrowing substantially in accordance with the Merger Agreement and the other material agreements, instruments and documents relating thereto (without any alteration, amendment, change, supplement or waiver of any such document or any condition therein, in each case in a manner materially adverse to the interests of the Audited Financial Statements that has had or could be reasonably expected to have, Administrative Agent and the Lenders either individually or in the aggregate, without the prior written consent of the Book Managers; provided that the aggregate purchase price may be reduced without any such consent).
(c) After giving effect to the Transactions and all Borrowings under the Facilities on the date hereof, the aggregate undrawn amount under the Revolving Credit Facilities shall not be less than $100,000,000.
(d) Since June 7, 2008 there shall not have occurred any events or changes that, individually or in the aggregate, have had or could reasonably be expected to have a Material Adverse Effect; and Effect (Cas defined in the Merger Agreement) on the Acquired Company.
(e) Other than shareholders’ or noteholders’ litigation relating to the Merger, there shall not be any litigation in any court or before any arbitrator or Governmental Authority, that could reasonably be expected, individually or in the aggregate, to impose materially adverse conditions, or which could reasonably be expected, individually or in the aggregate, to have a calculation material adverse effect, upon the consummation of the Consolidated Leverage Ratio Merger or any of the other Transactions.
(f) The representations and warranties made by or on behalf of the Acquired Company and its subsidiaries in the Merger Agreement as are material, individually or in the aggregate, to the interests of the Lenders shall be true and correct (pursuant to the standard contained in the Merger Agreement, including being true and correct in all material respects if provided therein), but only to the extent that the Parent or the Acquisition Subsidiary has the right to terminate its obligations under the Merger Agreement as a result of a breach of such representations and warranties in the Merger Agreement.
(g) The representations and warranties contained in Sections 5.01, 5.02, 5.03, 5.04(a), 5.08, 5.11 (with respect to the Parent and its Subsidiaries without giving effect to the Merger) and 5.13 shall be true and correct on and as of the last day date of the fiscal quarter initial Borrowing.
(h) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof. The Committed Loan Notice submitted by the Borrower in connection with the initial Borrowing hereunder shall be deemed to be a representation and warranty that each of the Borrower ended conditions specified in Sections 4.01(b) through (g) have been satisfied on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and.
(xii) such other assurancesIn the case of a Borrowing to be denominated in an Alternative Currency, certificatesthere shall not have occurred any change in national or international financial, documents, consents political or opinions as economic conditions or currency exchange rates or exchange controls that in the reasonable opinion of the Administrative Agent or the Required Lenders reasonably may requirewould make it impracticable for such Borrowing to be denominated in the relevant Alternative Currency.
(bi) Any All fees required to be paid hereunder or under to the Fee Letters Administrative Agent and/or any of the Book Managers on or before the Closing Date shall have been paid and (provided such ii) all fees may required to be paid from to the proceeds of such initial Loan)Lenders on or before the Closing Date shall have been paid.
(ck) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel counsel, if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 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 Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 Agent, each Arranger and each of the Lenders:
(i) fully executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Principal Borrower;
(ii) a Note executed by the Borrower Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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 (provided, that with respect to all of the above other than resolutions or similar approval/authority documents, to the extent such materials were delivered in connection with the Revolving Credit Agreement, the Loan Parties shall be permitted to provide certificates of no change with respect to such items);
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing and that each of the Loan Parties is validly existing, in good standing and qualified to engage in business in each the jurisdiction where its ownershipof such Loan Party’s incorporation, lease organization, or operation of properties or the conduct of its business requires such qualificationformation, as applicable;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLPXxxxxxx X. Xxxxxx, general counsel to of the Loan PartiesPrincipal Borrower, 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 the chief financial officer of each Loan Party the Principal Borrower:
(A) either (A1) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such the Loan Party Parties and the validity against such the Loan Party Parties of the Loan Documents to which it each is a party, and such consents, licenses and approvals shall be in full force and effect, or (B2) stating that no such consents, licenses or approvals are so required;
(viiB) a certificate signed by a Responsible Officer of the Borrower certifying (A1) that immediately after giving effect to this Agreement, the other Loan Documents and all the transactions contemplated therein to occur on such date, (x) each Borrower is, and the Loan Parties, taken as a whole, are, Solvent, (y) no Default or Event of Default exists, and (z) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects (or in all respects in the case of a representation or warranty containing a materiality qualifier), (2) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) have been satisfied, (B3) 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 (4) the current Credit Ratings; and and
(C) a calculation of the Consolidated Leverage Ratio demonstrating compliance, as of the last day end of the fiscal quarter of the Borrower period ended on June 30, 2017;
2015, with the financial covenants contained in Section 7.08 by detailed calculation thereof (viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to which calculation shall be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative AgentAgent and which shall include, regarding the Solvency of (A) the Borroweramong other things, (B) each an explanation of the other Loan Parties, methodology used in such calculation and (C) a breakdown of the Consolidated Parties on a consolidated basiscomponents of such calculation); and
(xivii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) There shall not have occurred a material adverse change since December 31, 2014 in the business, assets, operations or financial condition of the Borrowers and the other Loan Parties, taken as a whole, or in the facts and information, taken as a whole, regarding such entities as represented to date.
(c) There shall not exist any action, suit, investigation, or proceeding pending or threatened in writing, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(d) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from or provisions reasonably satisfactory to the proceeds of such initial LoanAdministrative Agent shall have been made for the concurrent payment thereof).
(ce) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its their reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it them through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 1 contract
Samples: Term Loan Agreement (Highwoods Realty LTD Partnership)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (oror other appropriate party, in the case of certificates of governmental officialsas applicable, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders, or to the Administrative Agent on behalf of the Lenders, as noted below:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrowers;
(ii) executed counterparts of the Collateral Agreement and Security Agreement, sufficient in number for distribution to the Administrative Agent and the Custodian;
(iii) a Note executed by the Borrower Borrowers in favor of each Lender requesting a Note;
(iiiiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party 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 Borrower is a party;
(ivv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party Borrower is duly organized or formed, and that each of the Loan Parties Borrowers is validly existing, in good standing and qualified to engage in business in each jurisdiction where its such Borrowers’ 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;
(vvi) a favorable written opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, (addressed to the Administrative Agent and the Lenders and dated as of the effective date of this Agreement) of each Lenderof (i) the in-house general counsel for the Borrowers, as substantially in the form of Exhibit G-1 hereto (ii) Sidley Austin LLP, counsel for the Borrowers, substantially in the form of Exhibit G-2 hereto, (iii) Xxxxxx and Xxxxxx, counsel for the Borrowers that are Cayman Islands companies, with respect to matters of Cayman Islands law substantially in the form of Exhibit G-3 and (iv) Hunton & Xxxxxxxx LLP, counsel for KKR Financial Corp., substantially in the form of Exhibit G-4 hereto, and in each case, covering such other matters concerning relating to the Loan Parties and Borrowers, this Agreement, the other Loan Documents or the transaction contemplated hereby or thereby as the Administrative Agent may shall reasonably request. The Borrowers hereby request such counsel to deliver such opinions;
(vivii) a certificate of signed by a Responsible Officer of each Loan Party Borrower, in a form satisfactory to the Administrative Agent, either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party Borrower and the validity against such Loan Party 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;
(viiviii) a certificate signed by a Responsible Officer of each Borrower, in a form satisfactory to the Borrower Administrative Agent, certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (f4.02(b) have been satisfied, 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viiiix) a certificate signed by a Responsible Officer of each Borrower, in a form satisfactory to the Administrative Agent, stating that (i) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental instrumentality that purports to affect any Borrower or any Subsidiary thereof or any transaction contemplated by the Loan Documents, if such action, suit, investigation or proceeding could have a Material Adverse Effect, (ii) immediately prior to and following the transactions contemplated herein, each of the Borrowers shall be Solvent, and (iii) immediately after the execution of this Credit Agreement and the other Loan Documents, (A) no Default or Event of Default exists and (B) all representations and warranties contained herein and in the other Loan Documents are true and correct;
(x) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower KKR Financial Corp. ended on June 30March 31, 20172007, signed by a Responsible Officer of the BorrowerOfficer;
(ixxi) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Dateevidence, in form and substance reasonably satisfactory to the Administrative Agent, regarding that the Solvency Security Documents are effective to create in favor of the Administrative Agent a legal, valid and enforceable first Lien and security interest in or on each item of Collateral in existence and owned or controlled by the Borrowers as of the Closing Date (Ain the case of KKR Financial Corp. and KKR TRS), as of the date of the Existing Credit Agreement (in the case of KKR TRS LTD) or the Borrowerdate hereof (in the case of the other Borrowers). All filings, recordings, deliveries of instruments and other actions necessary or desirable in the opinion of the Administrative Agent to protect and preserve such security interests shall have been duly effected;
(Bxii) a completed and fully executed Perfection Certificate from the Borrowers and the results of Uniform Commercial Code searches (and the equivalent thereof in all applicable foreign jurisdictions) with respect to the Collateral, indicating no Liens other than Liens permitted by Section 7.01(a) and otherwise in form and substance reasonably satisfactory to the Administrative Agent on behalf of the Lenders;
(xiii) satisfactory financial statements of the type described in Section 6.01(b) for the fiscal quarter of KKR Financial Corp. ended March 31, 2007;
(xiv) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that all governmental and third party approvals necessary in connection with the financing contemplated by this Agreement and the continuing operations of each of Borrowers and each of their Subsidiaries shall have been obtained and be in full force and effect;
(xv) satisfactory evidence that each of the other Loan Partiesfollowing transactions shall have been consummated as described in the KKR Financial Form S-4: (a) pursuant to the Merger Agreement, KKR Financial Merger Corp. shall have been merged with and into KKR Financial Corp., with KKR Financial Corp. being the surviving entity (the “Merger”), and the Merger Effective Time shall have occurred, (b) pursuant to the Merger Agreement, each outstanding share of common stock of KKR Financial Corp. shall have been converted into one common share of KKR Financial, and (Cc) each other material transaction described on pages 64 through 68 in the Consolidated Parties on a consolidated basis; andKKR Financial Form S-4 as being consummated before or substantially simultaneously with the Merger, other than those described in clauses (i) through (iii) of Section 6.12, but excluding, for the avoidance of doubt, any transaction described as being consummated immediately after, or at any other time after, the Merger.
(xixvi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the Swingline Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Restatement Closing Date under the Fee Letter or any other Loan Document shall have been paid (provided such fees may be paid from paid, and the proceeds of such initial Loan)Fee Letter Extension shall have been executed and delivered by all parties thereto.
(c) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Restatement 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 Borrower Borrowers and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 Restatement Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedent:precedent (it being agreed that the following conditions precedent will be satisfied concurrently with the execution and delivery of this Agreement):
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (if applicable), 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, sufficient in number for distribution to the Administrative Agent, each Lender Agent and the BorrowerBorrowers;
(ii) a Note Notes executed by the Borrower Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly existing, existing and in good standing in its jurisdiction of organization, including a certificate from the Insurance Regulatory Authority as to the authority to do business and qualified to engage in business in each jurisdiction where its ownership, lease or operation good standing of properties or the conduct of its business requires such qualificationAflac;
(v) a favorable opinion opinions of Xxxxxxxx Xxxxxx Xxxxxxxx and In-House Counsel, Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, and Xxxxxx, Xxxxx and Xxxxxx, LLP, each as counsel to the Loan Parties, addressed in form and substance acceptable to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may requestAgent;
(vi) a certificate of a Responsible Officer of each Loan Party the Parent either (A) attaching copies of all consents, licenses and approvals 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 Borrower Parent certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;and
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to amounts payable by the Loan Documents has Borrowers under the Existing Credit Agreement have been obtained and is in effect;
(x) a certificate executed by a Responsible Officer or concurrently with the making of the Borrower as initial Loans will be) paid in full and the commitments of the Closing Date, in form and substance satisfactory to lenders under the Administrative Agent, regarding Existing Credit Agreement have been (or concurrently with the Solvency of (A) the Borrower, (B) each making of the other Loan Parties, and (Cinitial Loans will be) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may requireterminated.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower Borrowers and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings on the Closing Date of its Loans initial Borrowing hereunder is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent(shall have received the following, each dated as of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orunless otherwise specified) and, except for the Notes and any certificates or instruments required to be delivered under the Pledge and Security Agreement, in sufficient copies for each Lender:
(i) A Note for each Lender that is a party hereto as of the Closing Date, in the case amount of such Lender's Commitment, duly completed in accordance with SECTION 2.4 and executed by the Borrower;
(ii) the Subsidiary Guaranty, duly completed and executed by each Subsidiary of the Borrower other than the Excluded Subsidiaries;
(iii) the Pledge and Security Agreement, duly completed and executed by the Borrower and by each Subsidiary Guarantor, together with any certificates evidencing the Capital Stock being pledged thereunder as of governmental officials, a recent date before the Closing DateDate and undated assignments separate from certificate for any such certificate, duly executed in blank, and any promissory notes being pledged thereunder, duly endorsed in blank; and
(iv) the favorable opinions of Mungxx, Xxllxx & Xlsox, special counsel to the Borrower, in substantially the form of EXHIBIT G, addressed to the Agent and each the Lenders and addressing such other matters as the Agent may reasonably request.
(b) The Agent shall have received a certificate, signed by the president, the chief executive officer or the chief financial officer of the Borrower, in form and substance satisfactory to the Administrative Agent and each of the Lenders:
Agent, certifying that (i) executed counterparts all representations and warranties of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower contained in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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 Credit Documents are true and correct as of the Closing Date, both immediately before and after giving effect to which such Loan Party the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (iii) both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, no Material Adverse Change has occurred since August 21, 1997 (the date of filing of the final amendment to the registration statement of the Borrower on Form S-1), and there exists no event, condition or state of facts that could reasonably be expected to result in a party;
Material Adverse Change, and (iv) copies all conditions to the initial extensions of credit hereunder set forth in this Section and in SECTION 3.2 have been satisfied or waived as required hereunder.
(c) The Agent shall have received a certificate of the Organization Documents secretary or an assistant secretary of each Loan Party certified of the Borrower and the Subsidiary Guarantors, in form and substance satisfactory to be the Agent, certifying (i) that attached thereto is a true and complete copy of the articles or certificate of incorporation and all amendments thereto of the Borrower or such Subsidiary Guarantor, as the case may be, certified as of a recent date by the appropriate Secretary of State (or comparable Governmental Authority Authority) of the state or other its jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease bylaws of the Borrower or operation of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each LenderSubsidiary Guarantor, as the case may be, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such matters concerning certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the Loan Parties and board of directors of the Loan Documents Borrower or such Subsidiary Guarantor, as the Administrative Agent case may request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consentsbe, licenses and approvals required in connection with authorizing the execution, delivery and performance by such Loan Party of this Agreement and the validity against such Loan Party of the Loan other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of the Borrower or such consentsSubsidiary Guarantor, licenses as the case may be, executing this Agreement or any of such other Credit Documents, and approvals attaching all such copies of the documents described above.
(d) The Agent shall have received (i) a certificate as of a recent date of the good standing of each of the Borrower and its Subsidiaries under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction, (ii) a certificate as of a recent date of the qualification of each of the Borrower and its Subsidiaries to conduct business as a foreign corporation in each jurisdiction where it is so qualified as of the Closing Date, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction, and (iii) to the extent generally provided, a tax clearance, tax good standing or similar certificate or letter as to each of the Borrower and the Subsidiary Guarantors, from the department of revenue (or comparable Governmental Authority) in each applicable jurisdiction under (i) and (ii) above.
(e) All legal matters, documentation, and corporate or other proceedings incident to the transactions contemplated hereby shall be satisfactory in form and substance to the Agent; all approvals, permits and consents of any Governmental Authorities or other Persons required in connection with the execution and delivery of this Agreement and the other Credit Documents and the consummation of the transactions contemplated hereby and thereby shall have been obtained (except for approvals, permits and consents the absence of which, individually or in the aggregate, is not reasonably likely to have a Material Adverse Effect), without the imposition of conditions that are not acceptable to the Agent, and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in full force and effecteffect and the Agent shall have received such copies thereof as it shall have requested; all applicable waiting periods shall have expired without any adverse action being taken by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before, and no order, injunction or decree shall have been entered by, any court or other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or (B) stating that no such consentsis otherwise related to or arises out of, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d)this Agreement, (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each any of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Credit Documents or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder consummation of the transactions contemplated hereby or under thereby, or that, in the Fee Letters on or before opinion of the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 (Orthalliance Inc)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyCompany, 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, its legal counsel and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) a Note Notes executed by the Borrower Company in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the Company 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 partyDocuments;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other 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 each of the Loan Parties is validly existing, in good standing in its jurisdiction of organization, including certified copies of the Company’s Organization Documents, and qualified to engage in business in each jurisdiction where its ownership, lease or operation certificates of properties or the conduct of its business requires such qualificationgood standing and tax clearance certificates;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, special counsel to the Loan PartiesCompany, addressed to the Administrative Agent and each Lender, as to such matters concerning in the Loan Parties and the Loan Documents as the Administrative Agent may requestform set forth in Exhibit H;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower Company certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017current Debt Ratings;
(viiivii) a duly completed Compliance Certificate such evidence as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding Agent may reasonably require to verify that the Solvency of (A) Borrowers’ payment obligations under the Borrower, (B) each of Existing Credit Facilities have been paid in full in cash and the other Loan Parties, and (C) commitments under the Consolidated Parties on a consolidated basisExisting Credit Facilities have been terminated; and
(xiviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower Company shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower Company and the Administrative Agent).
(d) The representations Lenders party to this Agreement shall constitute the “Required Lenders” under and warranties as such term is defined in each of the Borrower Existing Credit Facilities. The execution and delivery of this Agreement by each other Loan Party contained in Section 5 or any other Loan Document, or Lender which are contained in any document furnished at any time is also a lender under or in connection herewith or therewith, shall be true and correct in all material respects on and as either of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 Existing Credit Facilities shall be deemed to refer be the consent of such Lender to the most recent statements furnished pursuant to clauses (a) and (b), respectively, waiver of Section 6.01any requirement under such Existing Credit Facility for advance written notice of the termination of the commitments under such Existing Credit Facility.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 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 (Danaher Corp /De/)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals s or telecopies other electronic image scan xxxx via e-mail) (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 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 of this Agreement, Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor favour of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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;[Reserved]
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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;[Reserved]
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx 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 request;[Reserved]
(vi) a certificate of a Responsible Officer of each Loan Party either signed by Xxxxxx Xxxxxx, as requested by the Agent, certifying
(A) attaching copies of all that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, and (B) either that (1) no consents, licenses and or approvals are 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 or (2) that upon entry of the Initial Order, all such consents, licenses and approvals shall be have been obtained and are 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance and cash management arrangements required to be maintained pursuant to the Loan Documents has and the J.S.N. Credit Agreement, and all insurance endorsements in favour of the Agent required under the Loan Documents, have been obtained and is are in effect;
(viii) the Security Documents, including the amended and restated guarantee from the Personal Guarantor duly executed;
(ix) all other Loan Documents, each duly executed by the applicable Loan Parties;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing DateForbearance Agreement, in form and substance acceptable to Agent;
(xi) results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, regarding except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements satisfactory to the Solvency Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including PPSA and UCC (to the Borrowerextent applicable) financing statements, required by Law or reasonably requested by the Agent to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Agent, (B) each of the other Loan PartiesDDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control accounts, and (CD) Collateral Access Agreements as required by the Consolidated Parties on a consolidated basisAgent; andor
(xixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.;
(b) Any the Borrower shall have retained the services of Xxxxxx Xxxxxxxx Group (or such other consultant as Agent may accept in its Permitted Discretion) on terms and conditions and for a term acceptable to Agent;
(c) [Reserved]
(d) The Agent shall have received a Borrowing Base Certificate dated the Closing Date and executed by a Responsible Officer of the Borrower.
(e) [Reserved]
(f) The Agent shall have received and be satisfied with the Budget, the RISP, the Restructuring Plan, the M and such other information (financial or otherwise) reasonably requested by the Agent;
(g) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or form the basis for an appeal of the Initial Order;
(h) Other than any Material Contract or Material Indebtedness the remedies under which are stayed by the Initial Order, there shall not have occurred any default of any Material Contract of any Loan Party;
(i) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document;
(j) All fees and expenses required to be paid hereunder or under to the Fee Letters Agent on or before the Closing Date shall have been paid (provided such in full, and all fees may and expenses required to be paid from to the proceeds of such initial Loan).Lenders on or before the Closing Date shall have been paid in full;
(ck) Unless waived by the Administrative Agent, the The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).;
(dl) The representations Agent and warranties the Lenders shall have received all documentation and other know your customer -money laundering rules and regulations, including without limitation the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and the Patriot Act with respect to the Loan Parties other than P.M.R. Inc.;
(m) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date;
(n) After giving effect to these transactions and the Initial Order, no Default or Event of Default shall exist on the Closing Date;
(o) All of the Borrower Committed Revolving Loans hereunder shall be secured by Liens on all of the assets of the Loan Parties and each other Loan Party contained in Section 5 or all Post-Petition Revolving Loans shall at all times have super priority claim status subject only to Permitted Encumbrances;
(p) All application materials and documents, including any other Loan Document, or which are contained in any document furnished at any time under or service list in connection herewith or therewithwith all CCAA Proceedings, shall be true in form and correct substance satisfactory to the Agent, acting reasonably;
(q) The Initial Order shall (i) be in all material respects on form and as substance satisfactory to the Agent including regarding the amounts of the date Court Charges and approving inter alia, this debtor-in-possession financing, the continuation of such Loanthe cash management arrangements and cash collateral arrangements with the applicable Blocked Account Bank, except the RISP, the Court Charges approved by the Agent, and the appointment of a CRO acceptable to Agent with powers and powers of the Monitor acceptable to the extent that such representations Agent, and warranties specifically refer (ii) shall have been entered and in full force and effect and shall not have been reversed, vacated, or stayed, subject to an earlier dateappeal Permitted Discret consents and approvals to the transaction contemplated herein and therein shall have been obtained to the satisfaction of the Agent;
(r) The ownership, in which case they corporate structure and senior management of the Loan Parties shall be true and correct in all material respects as of such earlier date, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer acceptable to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.Agent;
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(fs) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received written confirmation of a Committed Loan Notice in accordance with repayment plan from Xxxxxxxxx and its Affiliates on terms and conditions acceptable to Agent which the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative AgentAgent acknowledges it has received. 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 Consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented 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: Super Priority Dip Credit Agreement
Conditions of Initial Borrowing. The obligation of each Lender of the Lenders to advance the Borrowings make its Loan on the Closing Date of its Loans hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a an original Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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 on behalf of such Loan Party in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties Borrower and Guarantors is validly 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 do so could not reasonably be expected to have a Material Adverse Effect, including, certified copies of the Borrower’s organization documents, certificates of good standing and/or qualification to engage in business and tax clearance certificates;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, written opinions addressed to the Administrative Agent and each Lenderthe Lenders and dated as of the Closing Date of (A) Xxxxx X. Xxxxxxx, as General Counsel of the Borrower and (B) Xxxxxxxx Xxxx LLP, special counsel to the Borrower covering such matters concerning relating to the Loan Parties and Borrower, this Agreement or the Loan Documents transactions contemplated hereby as the Administrative Agent may shall reasonably request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals of Governmental Authorities and other Persons 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, required in connection with the Loan Documents and the transactions contemplated thereby, 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 letter of direction containing funds flow information, with respect to the proceeds of the Loans on the Closing Date;
(viii) (A) copies of the financial statements referred to in Sections 5.01(a) and (B), and a certificate signed by a Responsible Officer of the Borrower certifying (A1) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) have been satisfied, (B2) that there has been no event or circumstance since the date of the Audited Financial Statements for the fiscal year ending December 31, 2014, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C3) a calculation of the Consolidated Leverage Ratio compliance with Section 6.11 and 6.12 as of the last day of the most recent fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrowerend;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer copies of financial projections of the Borrower as of and its Subsidiaries for the three fiscal years following the Closing Date, together with such information as the Administrative Agent may reasonably request to confirm the tax, legal, and business assumptions made therein, all in form and substance reasonably satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees and expenses required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements of counsel as shall constitute its reasonable estimate of such fees, charges and disbursements of counsel 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into satisfactory evidence that (i) all principal, interest, fees and other amounts owing under the PNC Facility, Existing Term Loan Agreement shall have been (or shall simultaneously with the Bank effectiveness hereof be) repaid in full (it being understood that such amounts may be repaid out of America Facility, the Capital One Facility and the US Bank Lessee Line proceeds of Credit Loans hereunder) and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative AgentRevolving Credit Agreement is effective. Without limiting the generality of the provisions of the last paragraph of Section 9.039.02, 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 Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings on initial Borrowing hereunder, and the Closing Date obligation of its Loans hereunder the Issuing Bank to issue Letters of Credit hereunder, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orunless otherwise specified) and, except for the Notes and the certificates and instruments required to be delivered under the Security Agreements, in sufficient copies for each Lender:
(i) counterparts hereof signed by each of the parties hereto;
(ii) a Committed Loan Note and Bid Loan Note for the account of each Lender that is a party hereto as of the Closing Date, in the case amount of such Lender's Commitment and duly completed and executed by the Borrower;
(iii) the Guaranty, duly completed and executed by the Guarantors;
(iv) the Security Agreements, duly completed and executed by the Borrower and the Guarantors owning any property of the type covered thereby, together with all certificates evidencing the capital stock being pledged thereunder and undated stock powers for each such certificate, duly executed in blank, and any promissory notes being pledged thereunder, duly endorsed in blank;
(v) an acknowledgment copy, or other evidence satisfactory to the Agent, of governmental officialsthe proper filing or recording of each document (including Financing Statements) required by law or reasonably requested by the Agent to be filed or recorded in each jurisdiction in which the filing or recording is so required or requested in order to create in favor of the Agent, for the benefit of the Lenders, a recent date before valid, legal and perfected first priority security interest in or lien on the Closing DateCollateral that is the subject of the Security Agreements, subject only to Permitted Liens;
(vi) and each a certificate, signed by the chief executive officer or chief financial officer of the Borrower, in form and substance satisfactory to the Administrative Agent Agent, certifying that (A) all representations and each warranties of the Lenders:
(i) executed counterparts of this Agreement, sufficient Borrower contained in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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 are true and correct as of the Closing Date, both immediately before and after giving effect to which such Loan Party any Loans to be made on the Closing Date hereunder and the application of the proceeds thereof, (B) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to any Loans to be made on the Closing Date hereunder and the application of the proceeds thereof, (C) both immediately before and after giving effect to the consummation of the transactions contemplated by this Agreement, no Material Adverse Change has occurred since December 31, 1996, and there exists no event, condition or state of facts related to the business of the Borrower and its Subsidiaries that could reasonably be expected to result in a partyMaterial Adverse Change and (D) the Borrower has satisfied each of the conditions set forth in this Section applicable to the Borrower and its Subsidiaries;
(ivvii) copies a certificate of the Organization Documents secretary or an assistant secretary of each Loan Party certified of the Borrower and its Subsidiaries, in form and substance satisfactory to be the Agent, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation and all amendments thereto of the Borrower or such Subsidiary, as the case may be, certified as of a recent date by the appropriate Secretary of State (or comparable Governmental Authority Authority) of the state or other its jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease bylaws of the Borrower or operation of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each LenderSubsidiary, as the case may be, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such matters concerning certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the Loan Parties and board of directors of the Loan Documents Borrower or such Subsidiary, as the Administrative Agent case may request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consentsbe, licenses and approvals required in connection with authorizing 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 as to the incumbency 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 genuineness of the signature of each officer of the Borrower certifying or such Subsidiary executing any of such Loan Documents, and attaching all such copies of the documents described above; provided, that non-corporate Subsidiaries shall provide comparable documentation as appropriate and reasonably satisfactory to the Agent.
(viii) certificates as of a recent date of (A) that the conditions specified in Sections 4.01(d)good standing of each of the Borrower and its Subsidiaries under the laws of its jurisdiction of organization, from the Secretary of State (eor comparable Governmental Authority) and (f) have been satisfiedof such jurisdiction, (B) that there has been no event or circumstance since the date qualification of each of the Audited Financial Statements that has had or could be reasonably expected Borrower and its Subsidiaries to have, either individually or conduct business as foreign corporations in the aggregatestates where each is qualified to conduct business and, a Material Adverse Effect; and (C) a calculation where reasonably available from the department of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of revenue or other appropriate Governmental Authority, that the Borrower ended on June 30and each Subsidiary has filed all required tax returns and owes no delinquent taxes; provided, 2017;
(viii) a duly completed Compliance Certificate as of that non- corporate Subsidiaries shall provide comparable certificates to the last day of extent available and such other documentation reasonably requested by the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;Agent.
(ix) evidence that all insurance required to be maintained pursuant the favorable opinion of Mayor, Day, Xxxxxxxx & Xxxxxx, L.L.P., counsel to the Loan Documents has been obtained Borrower, addressed to the Agent and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing DateLenders, in form and substance satisfactory to the Administrative Agent and each Lender;
(x) certificates, and copies of policies, of insurance, in form and substance satisfactory to the Agent, regarding upon the Solvency of (A) Collateral and the Borrower, (B) each business of the other Loan Parties, Borrower and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may requireeach Guarantor.
(b) Any fees All legal matters, documentation and corporate or other proceedings incident to the transactions contemplated hereby shall be reasonably acceptable to the Agent; all approvals, permits and consents of any Governmental Authorities or other Persons required to be paid hereunder or under in connection with the Fee Letters on or before execution and delivery of this Agreement and the Closing Date consummation of the transactions contemplated hereby shall have been paid obtained (provided such fees may be paid from without the proceeds imposition of such initial Loanconditions that are not reasonably acceptable to the Agent).
(c) Unless waived by the Administrative Agent, the Borrower and all related filings, if any, shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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 datebeen made, and except that for purposes of this Section 4.01all such approvals, the representations permits, consents and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower filings shall be in compliance (on a Pro Forma Basis taking into account full force and effect and the Agent shall have received such copies thereof as it shall have requested; all applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There waiting periods shall not have occurred expired without any 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.
(h) The absence of adverse action being taken by any condition, circumstance, Governmental Authority having jurisdiction; and no action, suitproceeding, investigation investigation, regulation or proceeding pending or, to the knowledge of the Borrower and/or Guarantorslegislation shall have been instituted, threatened in or proposed before, and no order, injunction or decree shall have been entered by, any court or before any arbitrator other Governmental Authority, in each case to enjoin, restrain or Governmental Authority prohibit, to obtain substantial damages in respect of, or that could is otherwise related to or arises out of, this Agreement or the consummation of the transactions contemplated hereby, or that, in the opinion of the Agent, would otherwise be reasonably be expected likely to have a Material Adverse Effect.
(c) Since December 31, 1996, both immediately before and after giving effect to the consummation of the transactions contemplated by this Agreement, there shall not have occurred any Material Adverse Change or any event, condition or state of facts relating to the business of the Borrower and its Subsidiaries that could reasonably be expected to result in a Material Adverse Change, other than as specifically contemplated by this Agreement and the other Loan Documents.
(d) The Borrower shall have paid (i) to the Agent, the initial quarterly installment of the annual administrative fee described in SECTION 2.9(B), and (ii) all other fees and expenses of the Agent and the Lenders for which the Borrower has received an invoice required hereunder or under any other Loan Document to be paid on or prior to the Closing Date (including fees and expenses of counsel) in connection with this Agreement and the transactions contemplated hereby.
(e) The Administrative Agent shall have received a Committed Loan Notice in accordance an Account Designation Letter, together with written instructions from an Authorized Officer of the requirements hereofBorrower, including wire transfer information, directing the payment of the proceeds of the initial Loans to be made hereunder.
(jf) The Parent REIT and the Borrower Lenders shall have entered into (i) received the PNC FacilityFinancial Statements from the Borrower, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent. Without limiting Lenders.
(g) All taxes, fees and other charges in connection with the generality execution, delivery, recording, filing and registration of any of the provisions of Loan Documents shall have been paid by the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, Borrower.
(h) The Agent and 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 other documents, certificates, and instruments as the Agent or any Lender prior to the proposed Closing Date specifying its objection theretoshall have reasonably requested.
Appears in 1 contract
Samples: Loan Agreement (American Oncology Resources Inc /De/)
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings initial Borrowing hereunder, and the obligation of the Issuing Lender to issue Letters of Credit hereunder on the Closing Date of its Loans hereunder Restatement Effective Date, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies the Restatement Effective Date (followed promptly by originals) unless otherwise specified) and, except for the Notes, in sufficient copies for each properly executed Lender:
(i) counterparts hereof signed by a Responsible Officer each of the signing Loan Party, each dated the Closing Date parties hereto (or, in the case of certificates of governmental officialsany party as to which an executed counterpart hereof shall not have been received, a recent date before the Closing Date) and each in form and substance satisfactory to receipt by the Administrative Agent and each in form satisfactory to it of the Lenders:
(i) executed counterparts electronic, telegraphic, telecopy, or other written confirmation from such party of this Agreementexecution of a counterpart hereof by such party), sufficient including, without limitation, Lenders holding Commitments in number for distribution to the Administrative Agent, each Lender and the Borroweran aggregate amount of $250,000,000;
(ii) to the extent requested by any Lender in accordance with Section 2.4(d), a Revolving Note for each Lender that is a party hereto as of the Restatement Effective Date, in the amount of such Lender’s Commitment, each duly completed in accordance with the relevant provisions of Section 2.4(d) and executed by the Borrower in favor of each Lender requesting a Note;Borrower; and
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx Xxxxxxx Xxxxxxxxx & Xxxx, LLP, special counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lenderthe Lenders, as in form and substance reasonably satisfactory to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may request;Agent.
(vib) The Administrative Agent shall have received a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017certificate, signed by a Responsible Officer the president, the chief executive officer, the chief financial officer or the treasurer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of certifying that (Ai) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 or any this Agreement and the other Loan DocumentCredit Documents are true and correct as of the Restatement Effective Date in all material respects (except to the extent such representation and warranty is qualified by materiality, or in which are contained in any document furnished at any time under or in connection herewith or therewithcase, such representation and warranty shall be true and correct in all material respects on and as of the date of such Loan, or except to the extent that such representations representation and warranties specifically refer to an earlier warranty is made as of a specific date, in which case they case, such representation and warranty shall be true and correct in all material respects as of such earlier date), both immediately before and except that for purposes after giving effect to the consummation of this Section 4.01the transactions contemplated hereby, the representations making of the initial Loans hereunder and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof, (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (iii) both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, no Material Adverse Change has occurred since December 31, 2014 and, to the best of his knowledge, there exists no event, condition or state of facts that could reasonably be expected to result in a Material Adverse Change, and (iv) all conditions to the initial extensions of credit hereunder set forth in this Section 4.1 and in Section 4.2 have been satisfied or waived as required hereunder.
(fc) The Administrative Agent shall have received a certificate of the secretary or an assistant secretary of each of the Borrower shall be and its Subsidiaries (other than Excluded Subsidiaries), in compliance form and substance satisfactory to the Administrative Agent, certifying (on i) that attached thereto is a Pro Forma Basis taking into account true and complete copy of the applicable Loanarticles or certificate of incorporation and all amendments thereto of the Borrower or such Subsidiary, as the case may be, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) with of its jurisdiction of organization, and that the financial covenants set forth in Section 7.11.
(g) There shall same has not have occurred any event or circumstance been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the Audited Financial Statements bylaws of the Borrower or such Subsidiary, as the case may be, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, and (iii) that has had attached thereto is a true and complete copy of resolutions adopted by the board of directors of the Borrower or could be reasonably expected such Subsidiary, as the case may be, authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to havewhich it is a party, either individually and as to the incumbency and genuineness of the signature of each officer of the Borrower or in such Subsidiary, as the aggregatecase may be, a Material Adverse Effectexecuting this Agreement or any of such other Credit Documents, and attaching all such copies of the documents described above.
(hd) The absence Administrative Agent shall have received a certificate as of any condition, circumstance, action, suit, investigation a recent date of the good standing or proceeding pending or, to the knowledge existence of each of the Borrower and/or Guarantorsand its Subsidiaries under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction.
(e) All legal, tax, accounting, business and other matters and all corporate or other proceedings incident to the transactions contemplated hereby shall be satisfactory in form and substance to the Administrative Agent; all approvals, permits and consents of any Governmental Authorities or other Persons required in connection with the execution and delivery of this Agreement and the other Credit Documents and the consummation of the transactions contemplated hereby and thereby shall have been obtained, without the imposition of conditions that are not acceptable to the Administrative Agent, and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in full force and effect and the Administrative Agent shall have received such copies thereof as it shall have requested; all applicable waiting periods shall have expired without any adverse action being taken by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened in or proposed before, and no order, injunction or decree shall have been entered by, any court or before other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or that is otherwise related to or arises out of, this Agreement, any arbitrator of the other Credit Documents or Governmental Authority that the consummation of the transactions contemplated hereby or thereby, or that, in the opinion of the Administrative Agent, could reasonably be expected to have a Material Adverse Effect.
(f) Since December 31, 2014, both immediately before and after giving effect to the consummation of the transactions contemplated by this Agreement, there shall not have occurred any Material Adverse Change or any event, condition or state of facts that could reasonably be expected to result in a Material Adverse Change.
(g) The Borrower shall have paid (i) to Xxxxx Fargo and Xxxxx Fargo Securities, the fees required under the Xxxxx Fargo Fee Letter to be paid to them on the Restatement Effective Date, in the amounts due and payable on the Restatement Effective Date, as required by the terms thereof, (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Xxxxx Fargo Fee Letter and (iii) all other fees and expenses of the Arrangers, the Administrative Agent and the Lenders required hereunder or under any other Credit Document to be paid on or prior to the Restatement Effective Date (including fees and expenses of counsel) in connection with this Agreement and the transactions contemplated hereby.
(h) The Administrative Agent shall have received the Projections as described in Section 5.11(b), which shall be in form and substance satisfactory to the Administrative Agent.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance evidence satisfactory to it that (i) concurrently with the requirements hereofmaking of the initial Loans hereunder, all principal, interest and other amounts outstanding with respect to the Existing Credit Agreement shall be repaid and satisfied in full and (ii) any letters of credit outstanding with respect to the Existing Credit Agreement (other than the Existing Letters of Credit) shall have been terminated or canceled.
(j) The Parent REIT and the Borrower Administrative Agent shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each received evidence in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality it that all of the provisions of the last paragraph requirements 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 6.6 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 been satisfied.
(k) The Administrative Agent shall have received notice all documentation and other information requested by the Administrative Agent that is required to satisfy applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(l) There shall be no liquidation or dissolution proceedings pending or threatened against the Borrower and the Borrower shall not be aware of any event or fact affecting or threatening the corporate existence of the Borrower or any of its Subsidiaries.
(m) The Administrative Agent shall have received an Account Designation Letter, together with written instructions from an Authorized Officer, including wire transfer information, directing the payment of the proceeds of the initial Loans to be made hereunder.
(n) The Administrative Agent and each Lender shall have received such Lender prior to other documents, certificates, opinions and instruments in connection with the proposed Closing Date specifying its objection theretotransactions contemplated hereby as it shall have reasonably requested.
Appears in 1 contract
Samples: Credit Agreement (Old Dominion Freight Line Inc/Va)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings make any Loans hereunder on the Closing Date of its Loans hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt Agent shall have received each of the following, each of which shall be originals or telecopies facsimiles or Adobe PDFs delivered by electronic mail (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyObligor, 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, the Security Agreement and the Intercreditor Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;Company; and
(ii) a Note executed by the Borrower Company in favor of each Lender requesting that has requested a NoteNote at least three Business Days prior to the Effective Date.
(b) The Agent shall have received:
(i) copies of the resolutions of the board of directors, authorized subcommittee thereof, or other equivalent body of each Obligor authorizing the Transactions to which such Obligor is a party, certified as of the Effective Date by the Secretary or an Assistant Secretary of such Obligor (or in the case of a limited liability company, of its manager); and
(ii) a certificate of the Secretary or Assistant Secretary of each Obligor (or in the case of a limited liability company, of its manager) certifying the names and true signatures of the officers of such Obligor authorized to execute, deliver and perform, as applicable, this Agreement and all other Loan Documents to be delivered by such Obligor hereunder.
(iii) the following personal property collateral requirements:
(A) certificates representing the Pledged Equity referred to in the Security Agreement that constitutes certificated securities (as defined in the Uniform Commercial Code) accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank to the extent required by the Security Agreement;
(B) proper financing statements in form appropriate for filing, duly prepared for filing under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement;
(C) proper filings in form appropriate for filing with the United States Patent and Trademark Office and United States Copyright Office together with evidence that all action that the Agent may deem necessary in order to perfect the Liens created under the Intellectual Property Security Agreement (as defined in the Security Agreement) has been taken or will be taken promptly after the Closing Date;
(D) evidence of the completion of, or of arrangements reasonably satisfactory to the Agent for the completion of, all other actions, recordings and filings of or with respect to the Security Agreement that the Agent may deem necessary in order to perfect the Liens created thereby;
(E) evidence that all other action that the Agent may deem necessary in order to perfect the Liens created under the Security Agreement has been taken or that arrangements reasonably satisfactory to the Agent for the completion thereof have been made;
(F) certified copies of Uniform Commercial Code, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Obligor as debtor and that are filed in those state and county jurisdictions in which any Obligor is organized or maintains its principal place of business and such other searches that the Agent deems necessary; and United States Patent and Trademark Office and United States Copyright Office searches in form and scope reasonably satisfactory to the Agent; and
(G) evidence reasonably acceptable to the Agent of payment or arrangements for payment by the Loan Parties of all applicable recording taxes, fees, charges, costs and expenses required for the recording of the Security Documents.
(c) The Agent shall have received:
(i) the articles or certificate of incorporation or equivalent document of each Obligor as in effect on the Effective Date, certified by the Secretary of State of its state of incorporation or organization as of a recent date;
(ii) the bylaws or equivalent document of each Obligor as in effect on the Effective Date, certified by the Secretary or Assistant Secretary of such Obligor as of the Effective Date;
(iii) such certificates a certificate of resolutions good standing or other actionequivalent document for each Obligor from the Secretary of State (or similar, incumbency certificates and/or other certificates applicable Governmental Authority) of Responsible Officers its state of each Loan Party incorporation or organization 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;recent date; and
(iv) copies a compliance certificate for each Insurance Subsidiary from the Department of the Organization Documents Insurance of each Loan Party certified to be true and complete its jurisdiction of domicile as of a recent date by date.
(d) The Agent shall have received a written opinion, reasonably acceptable to the appropriate Governmental Authority of Agent in form and substance, (addressed to the state or other jurisdiction of its incorporation or organization, where applicable, Agent and certified by a secretary or assistant secretary of such Borrower to be true the Lenders and correct as of dated the Closing Date 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 Effective Date) from each of the Loan Parties is validly 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;
(vi) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx Xxxxx & XxXxxxx LLP, counsel for the Obligors, substantially in the form of Exhibit H-1, (ii) Xxxx Xxxxxx, counsel for the Obligors, substantially in the form of Exhibit H-2 and (iii) Xxxxx & Xxxxxxx LLP, Indiana counsel for the Obligors, substantially in the form of Exhibit H-3.
(e) The Agent shall have been paid all accrued and unpaid fees, and reasonable costs and expenses to the Loan Parties, addressed extent then due and payable to the Administrative Agent on or before the Effective Date, including Attorney Costs of the Agent to the extent invoiced 2 Business Days prior to the Effective Date.
(f) The Agent shall be satisfied (and each Lendermay, as to but shall not be obligated to, rely on the receipt of a certificate from any Company or any Affiliate thereof for all or part of such matters concerning purpose) that the Loan Parties Senior Secured Notes shall have been issued in accordance with the Senior Secured Notes Indenture, and the Loan Documents as the Administrative Agent may request;Company shall have received net proceeds thereof.
(vii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses All Indebtedness and approvals required other obligations issued under or in connection with the executionExisting Credit Agreement shall have been repaid in full, delivery (ii) the Existing Credit Agreement and performance by such Loan Party all documents executed in connection therewith shall have been terminated on terms satisfactory to the Agent and (iii) the validity against such Loan Party of Agent shall have received an executed payoff letter with respect thereto in form and substance satisfactory 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 consents, licenses or approvals are so required;Agent.
(viih) The Agent shall have received (i) a certificate signed by a Responsible Officer on behalf of the Borrower certifying (A) that the conditions specified in Sections 4.01(d)Company, (e) and (f) 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) a calculation of the Consolidated Leverage Ratio dated as of the last day Effective Date, confirming the satisfaction of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants conditions set forth in Section 7.11.4.01(a) and Section 4.01(b) and confirming that the Company and its Subsidiaries have received all required approvals of the transactions contemplated hereby and by the other Loan Documents, including the Transactions, from each applicable Governmental Authority and (ii) a solvency certificate executed by the Chief Financial Officer of the Company, substantially in the form of Exhibit I.
(gi) There shall not have occurred any event All governmental authorizations and third party approvals (or circumstance since arrangements reasonably satisfactory to the date Lenders in lieu of such approvals) necessary in connection with the financing contemplated hereby and the continuing operations of the Audited Financial Statements that has had or could Company and its Subsidiaries shall have been obtained and be in full force and effect, in each case except for such authorizations and approvals as would not be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected likely to have a Material Adverse Effect.
(ij) The Administrative Agent shall have received a Committed Loan Notice in accordance with such other approvals, documents or materials as the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC FacilityAgent may reasonably request, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each all in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality .
(k) The Company and each of the provisions of Subsidiary Guarantors shall have provided the last paragraph of Section 9.03documentation and other information to the Agent that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, for purposes of determining compliance with including the conditions specified in this Section 4.01Patriot Act, 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 extent the Company shall have received notice from such Lender written requests therefor at least five business days prior to the proposed Closing Date specifying its objection theretoDate.
Appears in 1 contract
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (oror other appropriate party, in the case of certificates of governmental officialsas applicable, 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, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrowers;
(ii) executed counterparts of the Collateral Agreement and Security Agreement, sufficient in number for distribution to the Administrative Agent and the Custodian;
(iii) a Note executed by the Borrower Borrowers in favor of each Lender requesting a Note;
(iiiiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party 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 Borrower is a party;
(ivv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party Borrower is duly organized or formed, and that each of the Loan Parties Borrowers is validly existing, in good standing and qualified to engage in business in each jurisdiction where its such Borrowers’ 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;
(vvi) a favorable written opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, (addressed to the Administrative Agent and the Lenders and dated as of the effective date of this Agreement) of each Lenderof (i) the in-house general counsel for KKR Financial and KKR TRS, as substantially in the form of Exhibit G-1 hereto (ii) Sidley Austin LLP, counsel for KKR Financial and KKR TRS, substantially in the form of Exhibit G-2 hereto, (iii) Xxxxxx and Xxxxxx, counsel for KKR Holdings, with respect to matters of Cayman Islands law substantially in the form of Exhibit G-3 and (iv) Hunton & Xxxxxxxx LLP, counsel for KKR Financial, substantially in the form of Exhibit G-4 hereto, and in each case, covering such other matters concerning relating to the Loan Parties and Borrowers, this Agreement, the other Loan Documents or the transaction contemplated hereby or thereby as the Administrative Agent may shall reasonably request. The Borrowers hereby request such counsel to deliver such opinions;
(vivii) a certificate of signed by a Responsible Officer of each Loan Party Borrower, in a form satisfactory to the Administrative Agent, either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party Borrower and the validity against such Loan Party 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;
(viiviii) a certificate signed by a Responsible Officer of each Borrower, in a form satisfactory to the Borrower Administrative Agent, certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (f4.02(b) have been satisfied, 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viiiix) a certificate signed by a Responsible Officer of each Borrower, in a form satisfactory to the Administrative Agent, stating that (i) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental instrumentality that purports to affect any Borrower or any Subsidiary thereof or any transaction contemplated by the Loan Documents, if such action, suit, investigation or proceeding could have a Material Adverse Effect, (ii) immediately prior to and following the transactions contemplated herein, each of the Borrowers shall be Solvent, and (iii) immediately after the execution of this Credit Agreement and the other Loan Documents, (A) no Default or Event of Default exists and (B) all representations and warranties contained herein and in the other Loan Documents are true and correct;
(x) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower KKR Financial ended on June 30, 20172006, signed by a Responsible Officer of the BorrowerOfficer;
(ixxi) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Dateevidence, in form and substance reasonably satisfactory to the Administrative Agent, regarding that the Solvency Security Documents are effective to create in favor of the Administrative Agent a legal, valid and enforceable first Lien and security interest in or on each item of Collateral in existence and owned or controlled by the Borrowers as of the Closing Date (Ain the case of KKR Financial and KKR TRS) or the Borrowerdate hereof (in the case of KKR Holdings). All filings, recordings, deliveries of instruments and other actions necessary or desirable in the opinion of the Administrative Agent to protect and preserve such security interests shall have been duly effected;
(Bxii) a completed and fully executed Perfection Certificate from the Borrowers and the results of Uniform Commercial Code searches (and the equivalent thereof in all applicable foreign jurisdictions) with respect to the Collateral, indicating no Liens other than Liens permitted by Section 7.01(a) and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(xiii) satisfactory financial statements of the type described in Section 6.01(a) for the 2005 fiscal year ended of KKR Financial and financial statements of the type described in Section 6.01(b) for the fiscal quarter of KKR Financial ended March 31, 2006;
(xiv) evidence, in form and substance reasonably satisfactory to the Administrative Agent, that all governmental and third party approvals necessary in connection with the financing contemplated by this Agreement and the continuing operations of each of the other Loan Parties, Borrowers and (C) the Consolidated Parties on a consolidated basis; andeach of their Subsidiaries shall have been obtained and be in full force and effect;
(xixv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the Swingline Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Restatement Closing Date under the Fee Letter or any other Loan Document shall have been paid (provided such fees may be paid from paid, and the proceeds of such initial Loan)Fee Letter Supplement shall have been executed and delivered by all parties thereto.
(c) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Restatement 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 Borrower Borrowers and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 Restatement Closing Date specifying its objection thereto. Each of the parties hereto acknowledges and agrees that all of the items described in clauses (xi) through (xv) of Section 4.01(a) (other than the items described in clauses (xi) and (xii) relating to KKR Holdings) were previously delivered in connection with the Existing Credit Agreement, and accordingly those conditions precedent shall be deemed to be satisfied without the need for any further action.
Appears in 1 contract
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings initial Borrowing hereunder, and the obligation of the Issuing Lender to issue Letters of Credit hereunder on the Closing Date of its Loans hereunder Date, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies (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 Dateunless otherwise specified) and each in form and substance satisfactory to such number of copies as the Administrative Agent and each of the Lendersshall have requested:
(i) to the extent requested by any Lender in accordance with Section 2.4(a), a Note or Notes for such Lender, in each case duly completed in accordance with the provisions of Section 2.4(a) and executed counterparts by the Borrowers;
(ii) the favorable opinions of this Agreement(A) Skadden, sufficient Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Borrowers and their Subsidiaries, and (B) DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP with respect to matters of Virginia law as may be reasonably requested by the Administrative Agent, all in number for distribution form and substance reasonably satisfactory to the Administrative Agent.
(b) The Administrative Agent shall have received a certificate, signed by the president, the chief executive officer or the chief financial officer of each Borrower, dated the Closing Date and in form and substance reasonably satisfactory to the Administrative Agent, each Lender certifying that (i) all representations and warranties of the Borrower;
(ii) a Note executed by the Borrower Credit Parties contained in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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 Credit Documents to which such Loan Party is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date are, if otherwise qualified by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organizationmateriality, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and if not so qualified, true and correct in all material respects as of the Closing Date, both immediately before and after giving effect to the consummation of the making of the initial Loans and the application of the proceeds thereof (except to the extent any such other documents representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be, if otherwise qualified by materiality, true and certifications correct, and if not so qualified, true and correct in all material respects, as of such date), (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the making of the initial Loans and the application of the proceeds thereof, (iii) both immediately before and after giving effect to the making of the initial Loans and the application of the proceeds thereof, no Material Adverse Effect has occurred since April 30, 2004, and there exists no event, condition or state of facts that could reasonably be expected to result in a Material Adverse Effect, and (iv) all conditions to the initial extensions of credit hereunder set forth in this Section 4.1 and in Section 4.2 have been satisfied or waived as required hereunder.
(c) The Administrative Agent shall have received a certificate of the secretary or an assistant secretary of each Credit Party executing any Credit Documents as of the Closing Date, dated the Closing Date and in form and substance reasonably satisfactory to the Administrative Agent may reasonably require to evidence Agent, certifying (i) that each Loan Party attached thereto is duly organized a true and complete copy of the articles or formedcertificate of incorporation, certificate of formation or other organizational document and all amendments thereto of such Credit Party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that each the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the Loan Parties is validly existingbylaws, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease operating agreement or operation similar governing document of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each LenderCredit Party, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such matters concerning certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the Loan Parties and the Loan Documents as the Administrative Agent may request;
board of directors (vior similar governing body) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consentssuch Credit Party, licenses and approvals required in connection with authorizing the execution, delivery and performance by such Loan Party of this Agreement and the validity against such Loan Party of the Loan other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of such consentsCredit Party executing this Agreement or any of such other Credit Documents, licenses and approvals shall be in full force and effect, or (B) stating that no attaching all such consents, licenses or approvals are so required;copies of the documents described above.
(viid) The Administrative Agent shall have received a certificate signed by as of a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) have been satisfied, (B) that there has been no event or circumstance since the recent 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) a calculation good standing of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan each Credit Party executing any Credit Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid laws of its jurisdiction of organization, from the proceeds Secretary of State (or comparable Governmental Authority) of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01jurisdiction.
(e) No Default All approvals, permits and consents of any Governmental Authorities or material approvals, permits and consents of other Persons required in connection with the execution and delivery of this Agreement, the other Credit Documents and the consummation of the transactions contemplated hereby shall existhave been obtained, without the imposition of conditions that are not reasonably acceptable to the Administrative Agent; and no action, proceeding, investigation, regulation or legislation shall have been instituted, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or GuarantorsBorrowers’ knowledge, threatened in before, and no order, injunction or decree shall have been entered by, any court or before other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or to impose materially adverse conditions upon, this Agreement, any arbitrator of the other Credit Documents or Governmental Authority the consummation of the transactions contemplated hereby or that could reasonably be expected to have a Material Adverse Effect.
(f) The Administrative Agent shall have received reasonably satisfactory evidence that concurrently with the making of the initial Loans hereunder, (i) all principal, interest and other amounts outstanding under the existing senior credit agreement dated as of June 25, 2004 between the Parent, Xxxxxxx Xxxxxx, the lenders from time to time party thereto and JPMorgan Chase Bank, as Administrative Agent (the “Existing Senior Credit Facilities”) and the Credit Agreement dated as of May 26, 2005 between Wachovia, as lender and Xxxxxxx Xxxxxx, as Borrower (the “Bridge Credit Facility”) and the $175 million Floating Rate Senior Notes due June 25, 2009 (the “Senior Unsecured Notes”) shall be repaid and satisfied in full and all guarantees by the Credit Parties relating thereto extinguished, (ii) all commitments to extend credit under the agreements and instruments relating to the Existing Senior Credit Facilities and the Bridge Credit Facility shall be terminated, and (iii) any letters of credit outstanding under the Existing Senior Credit Facilities for which any Credit Party is obligated shall have been terminated, canceled or replaced.
(g) Since April 30, 2004, both immediately before and after giving effect to the to the making of the initial Loans and the application of the proceeds thereof, there shall not have occurred (i) a Material Adverse Effect or (ii) any event, condition or state of facts that could reasonably be expected to have a Material Adverse Effect.
(h) The Borrowers shall have paid (i) to the Arranger and Wachovia, the fees required under the Fee Letter to be paid to them on the Closing Date, in the amounts due and payable on the Closing Date as required by the terms thereof, (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Fee Letter, and (iii) all other fees and reasonable expenses of the Arranger, the Administrative Agent and the Lenders required hereunder or under any other Credit Document to be paid on or prior to the Closing Date (including reasonable fees and expenses of counsel) in connection with this Agreement and the other Credit Documents.
(i) The Administrative Agent shall have received a Committed Loan Notice copies of the financial statements referred to in accordance with the requirements hereofSection 5.11(a).
(j) The Parent REIT and the Borrower Administrative Agent shall have entered into (i) received an executed Financial Condition Certificate, attaching copies of the PNC FacilityProjections and an unaudited consolidated balance sheet of the Parent and its Subsidiaries as of the last day of the fiscal quarter most recently ended prior to the Closing Date for which financial statements of the Parent and its Subsidiaries are available and for that portion of the current fiscal year then ended, giving pro forma effect to the repayment of the Existing Senior Credit Facilities, the Bank of America Facility, the Capital One Bridge Credit Facility and the US Bank Lessee Line Senior Unsecured Notes, the initial extensions of Credit credit made under this Agreement and (ii) a conforming amendment the payment of transaction fees and expenses related to the Senior Notesforegoing, each all as if such events had occurred on such date (the “Pro Forma Balance Sheet”), all of which shall be in form and substance reasonably satisfactory to 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 .
(k) The Administrative Agent shall have received notice from such Lender prior evidence reasonably satisfactory to the proposed Administrative Agent that, as of the Closing Date specifying its objection theretoDate, after giving pro forma effect to the repayment of the Existing Senior Credit Facilities and the Senior Unsecured Notes, the initial extensions of credit made under this Agreement and the payment of transaction fees and expenses related to the foregoing, all as if such events had occurred on such date, the Leverage Ratio shall not be greater than 2.25 to 1.0.
(l) The Administrative Agent shall have received an Account Designation Letter, together with written instructions from an Authorized Officer of each Borrower, including wire transfer information, directing the payment of the proceeds of the initial Loans to be made hereunder.
(m) Each of the Administrative Agent and each Lender shall have received such other documents, certificates, opinions and instruments in connection with the transactions contemplated hereby as it shall have reasonably requested.
Appears in 1 contract
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals, to the extent applicable) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Partyapplicable Persons, each dated the Closing Date (or, in the case of certificates of governmental officials, a reasonably 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, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerLoan Documents;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer of each Loan Party the Borrower, the Borrower Parent and the Investment Adviser 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 Person is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party of the Borrower, the Borrower Parent and the Investment Adviser is duly organized organized, incorporated or formedregistered, as applicable, and that each of the Loan Parties Borrower, the Borrower Parent and the Investment Adviser is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownershipof organization, lease incorporation or operation of properties or the conduct of its business requires such qualificationregistration;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx Dechert LLP, counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to such the matters concerning the Loan Parties Borrower, the Borrower Parent, the Investment Adviser and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the 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;
(vii) a certificate of a Responsible Officer of each Loan Party of the Borrower, the Borrower Parent and the Investment Adviser either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party Person and the validity against such Loan Party 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;
(viiviii) a certificate signed by a Responsible Officer evidence satisfactory to the Administrative Agent in its sole discretion that the Net Asset Value of Borrower is at least equal to $10,000,000;
(ix) evidence satisfactory to the Administrative Agent in its sole discretion that since the date of the Borrower certifying (A) that the conditions specified in Sections 4.01(d)most recent Audited Financial Statements, (e) and (f) 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 havecircumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;and
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date that have been invoiced shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of outside counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent); provided, however, that such fees, charges and disbursements shall only be due and payable to the extent provided pursuant to Section 10.04.
(d) The representations and warranties of the Borrower, Borrower Parent and each other Loan Party the Investment Adviser contained in Section 5 or any other each Loan Document, or which are contained in any document (including the Beneficial Ownership Certification) furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such LoanClosing 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 respects, or as so qualified, as applicable) as of such earlier date, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, from such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower Administrative Agent and the Lenders shall be have a valid and perfected first-priority lien and security interest in compliance the Collateral, all filings (on a Pro Forma Basis taking into account including all UCC financing statements and similar filings contemplated by the applicable Loan) Security Agreement and the Sale Agreement, including all back-up filings in relation to Collateral Assets sold thereunder), recordations and searches necessary or desirable in connection with the financial covenants set forth Collateral shall have been duly made, and all filing and recording fees and taxes shall have been duly paid, including in Section 7.11each case under, and as required by, all Applicable Laws.
(g) There shall not have occurred any event or circumstance since All governmental and third party approvals necessary or, in the date discretion of the Audited Financial Statements Lender, advisable in connection with the Borrowing shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that has had would restrain, prevent or could be reasonably expected to have, either individually or in otherwise impose adverse conditions on the aggregate, a Material Adverse EffectLender making the Borrowing.
(h) The absence of any conditioninitial Lender shall have received and reviewed all financial statements required to be delivered under Section 6.01 and, circumstancein each case, action, suit, investigation or proceeding pending or, such financial statements shall be satisfactory to the knowledge of the Borrower and/or Guarantors, threatened initial Lender in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effectits sole discretion.
(i) The Administrative Agent Upon the reasonable request of any Lender, the Borrower shall have received a Committed Loan Notice provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in accordance connection with applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the requirements hereofPATRIOT Act.
(j) The Parent REIT and If the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, then the Borrower shall have entered into (i) the PNC Facilitydeliver, the Bank of America Facilityto each Lender that so requests, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment Beneficial Ownership Certification in relation to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative AgentBorrower. 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 Initial Borrowing. The occurrence of the Closing Date, the effectiveness of this Agreement and the obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly 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 each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in the number for distribution to requested by the Administrative Agent, each Lender and the BorrowerAgent or its legal counsel;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Borrower is duly organized or formed, and that each of the Loan Parties Borrower is validly existing, in good standing and qualified to engage in business in (A) the jurisdiction of its incorporation or organization 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLPHaynsworth Sxxxxxx Xxxx, P.A., counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and covering enforceability of the Loan Documents as the Administrative Agent may requestand such other matters to be agreed upon;
(vi) a certificate of a Responsible Officer of each Loan Party the Borrower either (A) attaching copies of all consents, licenses and approvals 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 certifying that such consents, licenses and approvals shall be are 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017current Debt Ratings;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to obligations under the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of Existing Credit Agreement have been, or concurrently with the Closing DateDate are being, in form paid and substance satisfactory to fully satisfied and any and all Liens securing obligations under the Administrative Agent, regarding Existing Credit Agreement have been or concurrently with the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basisClosing Date are being released; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 or Article V and in any other Loan Document, or and those which are contained in any other document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01Closing Date.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application exist and be continuing as of the proceeds thereofClosing Date.
(f) The Borrower Closing Date shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court on or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC FacilityMay 15, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent2006. 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 Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings initial Borrowing hereunder, and the obligation of the Issuing Lenders to issue Letters of Credit hereunder on the Closing Date of its Loans hereunder Restatement Effective Date, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies the Restatement Effective Date (followed promptly by originals) unless otherwise specified, ):
(i) counterparts hereof signed by each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date parties hereto (or, in the case of certificates of governmental officialsany party as to which an executed counterpart hereof shall not have been received, a recent date before the Closing Date) and each in form and substance satisfactory to receipt by the Administrative Agent and each in form satisfactory to it of the Lenders:
(i) executed counterparts electronic or other written confirmation from such party of this Agreementexecution of a counterpart hereof by such party), sufficient including, without limitation, Lenders holding Commitments in number for distribution to the Administrative Agent, each Lender and the Borroweran aggregate amount of $250,000,000;
(ii) to the extent requested by any Lender in accordance with Section 2.4(d), a Revolving Note for each Lender that is a party hereto as of the Restatement Effective Date, in the amount of such Lender’s Commitment, each executed by the Borrower in favor of each Lender requesting a Note;Borrower; and
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx Bond Xxxxxxxxx (US) LLP, special counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lenderthe Lenders, as in form and substance reasonably satisfactory to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may request;Agent.
(vib) The Administrative Agent shall have received a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017certificate, signed by a Responsible Officer the president, the chief executive officer, the chief financial officer or the treasurer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of certifying that (Ai) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 this Agreement and the other Credit Documents are true and correct as of the Restatement Effective Date in all material respects (except to the extent such representation and warranty is qualified by materiality or any other Loan Documentreference to Material Adverse Effect or Material Adverse Change, or in which are contained in any document furnished at any time under or in connection herewith or therewithcase, such representation and warranty shall be true and correct in all material respects on and as of the date of such Loan, or except to the extent that such representations representation and warranties specifically refer to an earlier warranty is made as of a specific date, in which case they case, such representation and warranty shall 12581222v10 24740.00017 be true and correct in all material respects as of such earlier date), both immediately before and except that for purposes after giving effect to the consummation of this Section 4.01the transactions contemplated hereby, the representations making of the initial Loans hereunder and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof, (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (iii) both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, no Material Adverse Change has occurred since December 31, 2018 and, to the best of his knowledge, there exists no event, condition or state of facts that could reasonably be expected to result in a Material Adverse Change, and (iv) all conditions to the initial extensions of credit hereunder set forth in this Section 4.1 and in Section 4.2 have been satisfied or waived as required hereunder.
(fc) The Administrative Agent shall have received a certificate of the secretary or an assistant secretary of each of the Borrower shall be and its Subsidiaries (other than Excluded Subsidiaries), in compliance form and substance satisfactory to the Administrative Agent, certifying (on i) that attached thereto is a Pro Forma Basis taking into account true and complete copy of the applicable Loanarticles or certificate of incorporation and all amendments thereto of the Borrower or such Subsidiary, as the case may be, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) with of its jurisdiction of organization, and that the financial covenants set forth in Section 7.11.
(g) There shall same has not have occurred any event or circumstance been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the Audited Financial Statements bylaws of the Borrower or such Subsidiary, as the case may be, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, and (iii) that has had attached thereto is a true and complete copy of resolutions adopted by the board of directors of the Borrower or could be reasonably expected such Subsidiary, as the case may be, authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to havewhich it is a party, either individually and as to the incumbency and genuineness of the signature of each officer of the Borrower or in such Subsidiary, as the aggregatecase may be, a Material Adverse Effectexecuting this Agreement or any of such other Credit Documents, and attaching all such copies of the documents described above.
(hd) The absence Administrative Agent shall have received a certificate as of any condition, circumstance, action, suit, investigation a recent date of the good standing or proceeding pending or, to the knowledge existence of each of the Borrower and/or Guarantorsand its Subsidiaries under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction.
(e) All legal, tax, accounting, business and other matters and all corporate or other proceedings incident to the transactions contemplated hereby shall be satisfactory in form and substance to the Administrative Agent; all approvals, permits and consents of any Governmental Authorities or other Persons required in connection with the execution and delivery of this Agreement and the other Credit Documents and the consummation of the transactions contemplated hereby and thereby shall have been obtained, without the imposition of conditions that are not acceptable to the Administrative Agent, and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in full force and effect and the Administrative Agent shall have received such copies thereof as it shall have requested; all applicable waiting periods shall have expired without any adverse action being taken by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened in or proposed before, and no order, injunction 12581222v10 24740.00017 or decree shall have been entered by, any court or before other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or that is otherwise related to or arises out of, this Agreement, any arbitrator of the other Credit Documents or Governmental Authority that the consummation of the transactions contemplated hereby or thereby, or that, in the opinion of the Administrative Agent, could reasonably be expected to have a Material Adverse Effect.
(f) There shall not have occurred any default or event of default under the Existing Credit Agreement.
(g) The Borrower shall have paid (i) to Xxxxx Fargo and Xxxxx Fargo Securities, the fees required under the Xxxxx Fargo Fee Letter to be paid to them on the Restatement Effective Date, in the amounts due and payable on the Restatement Effective Date, as required by the terms thereof, (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Xxxxx Fargo Fee Letter and (iii) all other fees and expenses of the Arrangers, the Administrative Agent and the Lenders required hereunder or under any other Credit Document to be paid on or prior to the Restatement Effective Date (including fees and expenses of counsel) in connection with this Agreement and the transactions contemplated hereby.
(h) The Administrative Agent shall have received a Committed Loan Notice in accordance evidence satisfactory to it that (i) concurrently with the requirements hereofmaking of the initial Loans hereunder, all interest and other amounts outstanding with respect to the Existing Credit Agreement shall be repaid and satisfied in full and (ii) any letters of credit outstanding with respect to the Existing Credit Agreement (other than the Existing Letters of Credit) shall have been terminated or canceled.
(i) To the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same, a Beneficial Ownership Certification in relation to the Borrower, in each case at least five Business Days prior to the Restatement Effective Date.
(j) The Parent REIT Upon the reasonable request of any Lender made at least ten days prior to the Restatement Effective Date, the Borrower shall have provided to such Lender all documentation and other information so requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, in each case at least five days prior to the Restatement Effective Date.
(k) There shall be no liquidation or dissolution proceedings pending or threatened against the Borrower and the Borrower shall have entered into (i) not be aware of any event or fact affecting or threatening the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality corporate existence of the provisions Borrower or any 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 its Subsidiaries.
(l) The Administrative Agent shall have received notice an Account Designation Letter, together with written instructions from an Authorized Officer, including wire transfer information, directing the payment of the proceeds of the initial Loans to be made hereunder.
(m) The Administrative Agent and each Lender shall have received such Lender prior to other documents, certificates, opinions and instruments in connection with the proposed Closing Date specifying its objection thereto.transactions contemplated hereby as it shall have reasonably requested. 12581222v10 24740.00017
Appears in 1 contract
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings on the Closing Date of its Loans initial Borrowing hereunder is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each of which shall be originals or telecopies or in an electronic format acceptable to the Administrative Agent (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan applicable Credit Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before prior to the Closing Date) and each in a form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient Agreement in such number for distribution of copies as the Administrative Agent shall have required;
(ii) to the Administrative Agentextent requested by any Lender in accordance with Section 2.4(d), a Note or Notes for such Lender, in each Lender case duly completed in accordance with the provisions of Section 2.4(d) and executed by the Borrower;
(iiiii) a Note the Guaranty, duly completed and executed by each Wholly-Owned Subsidiary (other than any Foreign Subsidiary to the Borrower in favor of each Lender requesting a Noteextent (and for as long as) doing so would cause adverse tax or regulatory consequences to the Borrower);
(iiiiv) such certificates of resolutions or other actionif any LIBOR Loans are to be borrowed prior to the 3rd Business Day after the Closing Date, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing shall have received, 3 days prior to the identitydate such LIBOR Loans are to be borrowed, authority a pre-funding LIBOR indemnity letter from the Borrower and capacity a completed Notice of each Responsible Borrowing;
(v) a certificate, signed by an Authorized Officer thereof authorized to act as a Responsible Officer of the Borrower, certifying that (i) all representations and warranties of the Credit Parties contained in connection with this Agreement and the other Loan Credit Documents qualified as to which such Loan Party is a party;
(iv) copies of the Organization Documents of each Loan Party certified to materiality shall be true and complete correct and those not so qualified shall be true and correct in all material respects, in each case as of the Closing Date, both immediately before and after giving effect to the transactions contemplated hereby, the making of the initial Loans and the application of the proceeds thereof (except to the extent any such representation or warranty is expressly stated to have been made as of a recent date by the appropriate Governmental Authority of the state specific date, in which case such representation or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to warranty shall be true and correct as of such date), (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the Closing Date transactions contemplated hereby, the making of the initial Loans and such other documents the application of the proceeds thereof, (iii) both immediately before and certifications as after giving effect to the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedtransactions contemplated hereby, the making of the initial Loans and the application of the proceeds thereof, no Material Adverse Effect has occurred since December 31, 2008, and there exists no event, condition or state of facts that each of the Loan Parties is validly existingcould reasonably be expected to result in a Material Adverse Effect, 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;
(viv) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel all conditions to the Loan Parties, addressed to the Administrative Agent initial extensions of credit hereunder set forth in this Section 3.1 and each Lender, in Section 3.2 have been satisfied or waived as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may requestrequired hereunder;
(vi) a certificate of a Responsible Officer the secretary or an assistant secretary of each Loan Credit Party either executing any Credit Documents as of the Closing Date, certifying (Ai) attaching copies that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all consentsamendments thereto of such Credit Party, licenses certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and approvals required that the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of such Credit Party, as then in connection with effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of such Credit Party, authorizing the execution, delivery and performance by such Loan Party of this Agreement and the validity against such Loan Party of the Loan other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of such consentsCredit Party executing this Agreement or any of such other Credit Documents, licenses and approvals shall be in full force and effect, or (B) stating that no attaching all such consents, licenses or approvals are so requiredcopies of the documents described above;
(vii) a certificate signed by as of a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) have been satisfied, (B) that there has been no event or circumstance since the recent 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) a calculation good standing of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan each Credit Party executing any Credit Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to under the Administrative Agentlaws of its jurisdiction of organization, regarding from the Solvency Secretary of State (Aor comparable Governmental Authority) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basissuch jurisdiction; and
(xiviii) such a Financial Conditions Certificate executed by the chief financial officer of the Borrower containing the copies of the financial statements referred to in Section 4.11 and confirming that, as of the Closing Date, after giving effect to the consummation of the transactions contemplated hereby, the Borrower and its Subsidiaries on a consolidated basis are solvent.
(b) All approvals, permits and consents of any Governmental Authorities, any Self-Regulatory Organizations, or other assurancesPersons required in connection the consummation of any of the transactions contemplated hereby shall have been obtained, certificates, documents, consents or opinions as without the imposition of conditions that are materially adverse to the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder Lenders; all applicable waiting periods shall have expired without any adverse action being taken or under the Fee Letters on threatened by any Governmental Authority or before the Closing Date Self-Regulatory Organization having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agentinstituted, the Borrower threatened or proposed before, and no order, injunction or decree shall have paid all reasonable feesbeen entered by, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or other Governmental Authority or any Self-Regulatory Organization, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or to impose materially adverse conditions upon, this Agreement, any of the other Credit Documents or the consummation of the transactions contemplated hereby or that could reasonably be expected to have a Material Adverse Effect.
(c) The Borrower shall have (i) amended its existing Credit Agreement, dated as of January 12, 2007, as amended by the First Amendment to Credit Agreement dated as of August 24, 2007 and the Second Amendment to Credit Agreement dated as of June 13, 2008, with Wachovia, as administrative agent, BofA, as syndication agent and the lenders party thereto (the “Existing Credit Facility”) to (x) permit the consummation of the transactions contemplated hereby, (y) terminate the revolving credit commitments of the lenders thereunder, and (z) make certain other amendments thereto requested by the Borrower and reasonably satisfactory to the Administrative Agent and (ii) complied with all terms and conditions in the definitive documentation of such amendment.
(d) Concurrently with the making of the initial Loans hereunder, (i) all principal, interest and other amounts outstanding under the Borrower’s existing Credit Agreement, dated as of June 27, 2008, with Wachovia, as administrative agent, BofA, as syndication agent and the lenders party thereto (the “Terminating Liquidity Credit Facility”), and (ii) all commitments to extend credit under the agreements and instruments relating to the Terminating Liquidity Facility and all guarantees relating thereto shall be terminated; and the Administrative Agent shall have received evidence of the foregoing satisfactory to it.
(e) Concurrently with the making of the initial Loans hereunder, the Borrower shall have entered into the Credit Agreement, dated as of the date hereof, with Wachovia, as administrative agent, BofA, as syndication agent and the lenders party thereto (the “New Liquidity Facility”), providing for a 364-day revolving credit facility in the aggregate principal amount of $300,000,000.
(f) Since December 31, 2008, both immediately before and after giving effect to the transactions contemplated hereby, there shall not have occurred (i) a Material Adverse Effect or (ii) any event, condition or state of facts that could reasonably be expected to have a Material Adverse Effect.
(g) The Borrower shall have paid (i) to the Arrangers, the fees required under the Joint Fee Letter to be paid to them on the Closing Date, in the amounts due and payable on the Closing Date as required by the terms thereof, (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Wachovia Fee Letter, and (iii) all other fees and reasonable expenses of the Arrangers, the Administrative Agent and the Lenders required hereunder or under any other Credit Document to be paid on or prior to the Closing Date (including reasonable fees and expenses of counsel) in connection with this Agreement and the other Credit Documents.
(h) The Administrative Agent shall have received a Committed Loan Notice in accordance an Account Designation Letter, together with written instructions from an Authorized Officer of the requirements hereofBorrower, including wire transfer information, directing the payment of the proceeds of the initial Loans to be made hereunder.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank Each of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 and each Lender shall have received notice from such Lender prior other documents, certificates, opinions and instruments in connection with the transactions contemplated hereby as it shall have reasonably requested (including but not limited to legal opinions of counsel to the proposed Closing Date specifying Borrower and its objection theretoSubsidiaries).
Appears in 1 contract
Conditions of Initial Borrowing. The occurrence of the Closing Date, the effectiveness of this Agreement and the obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly 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 each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in the number for distribution to requested by the Administrative Agent, each Lender and the BorrowerAgent or its legal counsel;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Borrower is duly organized or formed, and that each of the Loan Parties Borrower is validly existing, in good standing and qualified to engage in business in (A) the jurisdiction of its incorporation or organization 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 could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLPHaynsworth Xxxxxxx Xxxx, P.A., counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and covering enforceability of the Loan Documents as the Administrative Agent may requestand such other matters to be agreed upon;
(vi) a certificate of a Responsible Officer of each Loan Party the Borrower either (A) attaching copies of all consents, licenses and approvals 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 certifying that such consents, licenses and approvals shall be are 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017current Debt Ratings;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents Existing Credit Agreement has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of or concurrently with the Closing Date, in form Date is being terminated and substance satisfactory to any and all Liens securing obligations under the Administrative Agent, regarding Existing Credit Agreement have been or concurrently with the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basisClosing Date are being released; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 or Article V and in any other Loan Document, or and those which are contained in any other document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01Closing Date.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application exist and be continuing as of the proceeds thereofClosing Date.
(f) The Borrower Closing Date shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court on or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC FacilityJuly 8, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent2004. 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 Initial Borrowing. The obligation of each the Lender to advance make the Borrowings on the Closing Date of its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative AgentLender’s receipt of the following, each of which shall be originals or telecopies or electronic pdf’s (followed promptly by originals) unless otherwise specified, each properly 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 each of the LendersLender:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the Borrower as the Administrative Agent Lender 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 partyDocuments;
(iviii) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent Lender may reasonably require to evidence that each Loan Party the Borrower is duly organized or formedincorporated, and that each of the Loan Parties Borrower is validly 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 do so would not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and & Xxxx 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 Lender may reasonably request;
(viv) a certificate of a Responsible Officer of each Loan Party the Borrower either (A) attaching copies of all consents, licenses and approvals 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 partyDocuments, 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;
(viivi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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 would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xivii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders Lender reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative AgentLender, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent Lender (directly to such counsel if requested by the Administrative AgentLender) to the extent invoiced 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 Borrower and the Administrative AgentLender).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 the Lender’s execution and delivery of this Agreement shall be deemed to have consented toconstitute its approval and acceptance of, approved or accepted or to be satisfied its satisfaction with, each document or other matter required thereunder under this Section 4.01 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 1 contract
Conditions of Initial Borrowing. The obligation of each Lender the Initial Purchaser to advance purchase the Borrowings on the Closing Date of its Loans initial Notes hereunder is subject to the prior or concurrent satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyPerson, 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 Lendersits legal counsel:
(i) executed counterparts of this Agreement, the Subsidiary Guaranty (if any Subsidiaries are Subsidiary Guarantors on the Closing Date) and the other Note Documents, sufficient in number for distribution to the Administrative Agent, each Lender the Initial Purchaser and the BorrowerCompany;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Note 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 Note Documents to which such Loan Note Party is a party;
(iviii) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Note Party is duly organized or formed, and that each of the Loan Parties Note Party is validly 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 the failure to be so qualified in any such jurisdiction other than the jurisdiction of such Note Party’s organization or formation could not reasonably be expected to result in a Material Adverse Effect;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx 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 request;
(viiv) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consentsthe Company stating that no consent, licenses and approvals license or approval is required in connection with the execution, delivery and performance by such Loan any Note Party and the validity against such Loan Note Party of the Loan Note Documents to which it is a party, and such other than those consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;have already been obtained; and
(viiv) a certificate signed by a Responsible Officer of the Borrower Company certifying (A) that the conditions precedent specified in Sections 4.01(d), (e) and (f) Section 4.02 have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements financial statements referred to in Section 5.05 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and .
(Cb) The Administrative Agent shall be satisfied that all actions have been taken that are necessary in order for the Administrative Agent to have a calculation valid, perfected, first priority security interest in all of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30Collateral, 2017;subject only to Permitted Encumbrances.
(viiic) a duly completed Compliance Certificate as The Administrative Agent shall have received one or more favorable written opinions of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant counsel to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of Note Parties, dated the Closing Date, in form Date and substance satisfactory addressed to the Administrative AgentAgent and the Initial Purchaser, regarding as to such matters concerning the Solvency of (A) Note Parties, the BorrowerNote Documents and the validity, (B) each perfection and priority of the other Loan Parties, and (C) security interests of the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions Administrative Agent in the Collateral as the Administrative Agent or and the Required Lenders Initial Purchaser may reasonably may requirerequest.
(bd) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may or will be paid from with the proceeds of such the initial Loan)Notes.
(ce) Unless waived by the Administrative Agent, the Borrower Company shall have paid (or will pay with the proceeds of the initial Notes) all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower Company and the Administrative Agent).
; provided that in each case, (di) The representations the Company is required to pay such Attorney Costs pursuant to Section 12.04 and warranties of (ii) the Borrower and each other Loan Party contained in Section 5 or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, Company’s obligation to pay such amounts shall be true and correct in all material respects on and as of the date of such Loan, except to the extent that such representations and warranties specifically refer limited to an earlier date, in which case they shall be true and correct in all material respects as aggregate amount of such earlier date, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof$100,000.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facilitysuch other assurances, the Bank of America Facilitycertificates, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notesdocuments, each in form and substance reasonably satisfactory to 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 consents 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 opinions as the Administrative Agent shall have received notice from such Lender prior to or the proposed Closing Date specifying its objection theretoInitial Purchaser may reasonably require.
Appears in 1 contract
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly 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 each of the Lenders:
(i) executed counterparts of this AgreementAgreement and all Collateral Documents, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party 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 is a partyDocuments;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party Borrower is duly organized or formed, and that each of the Loan Parties Borrower is validly 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 do so would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinion(s) of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, Borrower acceptable to Agent addressed to the Administrative Agent and each Lender, as to such the matters set forth concerning the Loan Parties and Borrower, the Loan Documents and the Collateral in form and substance satisfactory to Agent, including an opinion from FAA counsel acceptable to Agent as to the Administrative Agent may requestperfection and priority of the security interest created by the Security Agreement;
(vi) a certificate of a Responsible Officer of each Loan Party Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party Borrower and the validity against such Loan Party Borrower of the Loan Documents (other than certificates, consents and licenses related to which it is operating individual aircraft or its business as a partycommon carrier), 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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 would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xix) a certificate executed duly completed Compliance Certificate as of the last day of the fiscal quarter of Borrower most recently ended prior to the Closing Date, signed by a Responsible Officer of Borrower;
(x) evidence that (i) the Borrower Security Agreement has created a valid and effective security interest in the Aircraft Collateral, (ii) such security interests have been duly perfected, and (iii) the Aircraft Collateral is free and clear of Liens or options other than such security interests and any Liens permitted pursuant to Section 7.01. Without limiting the generality of the foregoing, the Administrative Agent shall have received evidence that the Security Agreement has been duly filed for record with the Aircraft Registry of United States Department of Transportation, Federal Aviation Administration in Oklahoma City and the UCC Financing Statement has been duly filed in the appropriate UCC filing office in Alaska;
(xi) Qualified Appraisals showing that the Current Market Value of the Aircraft Collateral as of the Closing Datedate no earlier than December 31, 2004 is such that the Borrowing Base is not less than [***];
(xii) evidence that (i) any Collateral Documents (other than the Security Agreement) have created a valid and effective security interest in form and substance satisfactory to any Collateral (other than the Administrative Agent, regarding the Solvency of (A) the BorrowerAircraft Collateral), (Bii) each of the other Loan Partiessuch security interests have been duly perfected, and (Ciii) any Collateral (other Aircraft Collateral is free and clear of Liens or options other than such security interests and any Liens permitted pursuant to Section 7.01;
(xiii) the Consolidated Parties on a consolidated basisAgent Fee Letter and Arrangement/Upfront Fee Letter; and
(xixiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations commitments under the Existing Credit Agreement shall have expired or been terminated and warranties of the Borrower and each other Loan Party contained all amounts owing thereunder shall have been paid in Section 5 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 in all material respects on and as of the date of such Loan, except full. Each party hereto that is also a party to the extent that Existing Credit Agreement hereby waives any requirement under the Existing Credit Agreement of advance notice for any 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, termination or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agentpayment. 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 * Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. 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 Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies (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, the Mortgage Amendment in the form of Exhibit G hereto and each other Security Document listed in the Security Schedule, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties Party is validly 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 do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, Parties from counsel licensed to practice law in the State of Kansas 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 requestset forth in Exhibit F, in form and substance satisfactory to Agent;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents this Agreement has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 (MV Oil Trust)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Restatement Effective Date of its Loans hereunder is subject to satisfaction of shall occur when the following conditions precedentare satisfied:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies the Restatement Effective Date (followed promptly by originals) unless otherwise specified) and, except for the Notes, in sufficient copies for each properly executed Lender:
(i) Counterparts hereof signed by a Responsible Officer each of the signing Loan Party, each dated the Closing Date parties hereto (or, in the case of certificates of governmental officialsany party as to which an executed counterpart hereof shall not have been received, a recent date before the Closing Date) and each in form and substance satisfactory to receipt by the Administrative Agent and each in form satisfactory to it of the Lenders:
(i) executed counterparts telegraphic, telecopy, or other written confirmation from such party of this Agreementexecution of a counterpart hereof by such party), sufficient including, without limitation, Lenders holding Commitments in number for distribution to the Administrative Agent, each Lender and the Borroweran aggregate amount of $225,000,000;
(ii) To the extent requested by any Lender in accordance with Section 2.4(d), a Revolving Note for each Lender that is a party hereto as of the Restatement Effective Date, in the amount of such Lender’s Commitment, each duly completed in accordance with the relevant provisions of Section 2.4(d) and executed by the Borrower in favor of each Lender requesting a Note;Borrower; and
(iii) such certificates the favorable opinions of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as (A) 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) copies General Counsel of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lenderthe Lenders, as regarding the Borrower’s qualification and good standing in those material states in which it conducts business and (B) Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, PLLC, special counsel to such matters concerning the Loan Parties and the Loan Documents as Borrower, addressed to the Administrative Agent may request;and the Lenders, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(vib) The Administrative Agent shall have received a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017certificate, signed by a Responsible Officer the president, the chief executive officer or the chief financial officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding certifying that (i) all representations and warranties of the Solvency Borrower contained in this Agreement and the other Credit Documents are true and correct as of (A) the BorrowerRestatement Effective Date, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (Bii) each no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the other Loan Partiestransactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (iii) both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, no Material Adverse Change has occurred since December 31, 2005, and, to the best of his knowledge, there exists no event, condition or state of facts that could reasonably be expected to result in a Material Adverse Change, and (Civ) all conditions to the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid initial extensions of credit hereunder or under the Fee Letters on or before the Closing Date shall set forth in this Section and in Section 4.2 have been paid (provided such fees may be paid from the proceeds of such initial Loan)satisfied or waived as required hereunder.
(c) Unless waived by The Administrative Agent shall have received a certificate of the secretary or an assistant secretary of each of the Borrower and its Subsidiaries (other than Insignificant Subsidiaries), in form and substance satisfactory to the Administrative Agent, certifying (i) that attached thereto is a true and complete copy of the articles or certificate of incorporation and all amendments thereto of the Borrower shall have paid or such Subsidiary, as the case may be, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the bylaws of the Borrower or such Subsidiary, as the case may be, as then in effect and as in effect at all reasonable feestimes from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, charges and disbursements (iii) that attached thereto is a true and complete copy of counsel resolutions adopted by the board of directors of the Borrower or such Subsidiary, as the case may be, authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party, and as to the Administrative Agent (directly to incumbency and genuineness of the signature of each officer of the Borrower or such counsel if requested by Subsidiary, as the Administrative Agent) to the extent invoiced prior to case may be, executing this Agreement or on the Closing Date, plus such additional amounts any of such feesother Credit Documents, charges and disbursements as shall constitute its reasonable estimate attaching all such copies 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 Borrower and the Administrative Agent)documents described above.
(d) The representations and warranties Administrative Agent shall have received (i) a certificate as of a recent date of the good standing or existence of each of the Borrower and each other Loan Party contained in Section 5 its Subsidiaries under the laws of its jurisdiction of organization, from the Secretary of State (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 in all material respects on and as of the date comparable Governmental Authority) of such Loanjurisdiction, except and (ii) to the extent that such representations provided, a tax clearance, tax good standing or similar certificate or letter from the Department of Revenue (or comparable Governmental Authority) in North Carolina and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects Virginia as of such earlier date, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01Borrower.
(e) No Default All legal, tax, accounting, business and other matters and all corporate or other proceedings incident to the transactions contemplated hereby shall existbe satisfactory in form and substance to the Administrative Agent; all approvals, permits and consents of any Governmental Authorities or would result from, such proposed Borrowing or from other Persons required in connection with the application execution and delivery of this Agreement and the other Credit Documents and the consummation of the proceeds thereof.
(f) The Borrower transactions contemplated hereby and thereby shall have been obtained, without the imposition of conditions that are not acceptable to the Administrative Agent, and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in compliance (on a Pro Forma Basis taking into account full force and effect and the Administrative Agent shall have received such copies thereof as it shall have requested; all applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There waiting periods shall not have occurred expired without any 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.
(h) The absence of adverse action being taken by any condition, circumstance, Governmental Authority having jurisdiction; and no action, suitproceeding, investigation investigation, regulation or proceeding pending or, to the knowledge of the Borrower and/or Guarantorslegislation shall have been instituted, threatened in or proposed before, and no order, injunction or decree shall have been entered by, any court or before other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or that is otherwise related to or arises out of, this Agreement, any arbitrator of the other Credit Documents or Governmental Authority that the consummation of the transactions contemplated hereby or thereby, or that, in the opinion of the Administrative Agent, could reasonably be expected to have a Material Adverse Effect.
(f) Since December 31, 2005, both immediately before and after giving effect to the consummation of the transactions contemplated by this Agreement, there shall not have occurred any Material Adverse Change or any event, condition or state of facts that could reasonably be expected to result in a Material Adverse Change.
(g) The Borrower shall have paid (i) to Wachovia Capital Markets, LLC, the fee described in paragraph (1) of the Fee Letter, (ii) to the Administrative Agent, for the ratable benefit of the Lenders (including the Administrative Agent), the fee described in paragraph (2) of the Fee Letter, (iii) to the Administrative Agent, the initial payment of the annual administrative fee described in paragraph (3) of the Fee Letter, and (iv) all other fees and expenses of the Administrative Agent and the Lenders required hereunder or under any other Credit Document to be paid on or prior to the Restatement Effective Date (including fees and expenses of counsel) in connection with this Agreement and the transactions contemplated hereby.
(h) The Administrative Agent shall have received the Projections as described in Section 5.11(b), which shall be in form and substance satisfactory to the Administrative Agent.
(i) The Administrative Agent shall have received a Committed Loan Notice Covenant Compliance Worksheet, duly completed and certified by the chief financial officer of the Borrower and in accordance form and substance satisfactory to the Administrative Agent, demonstrating the Borrower’s compliance with the requirements financial covenants set forth in Sections 7.1 and 7.2, determined as of the date hereof, after giving effect to the making of the initial Loans hereunder and the consummation of the transactions contemplated hereby.
(j) The Parent REIT and the Borrower Administrative Agent shall have entered into received evidence satisfactory to it that (i) concurrently with the PNC Facilitymaking of the initial Loans hereunder, all principal, interest and other amounts outstanding with respect to the Bank of America Facility, the Capital One Facility Existing Credit Agreement shall be repaid and the US Bank Lessee Line of Credit satisfied in full and (ii) a conforming amendment any letters of credit outstanding with respect to the Senior Notes, each Existing Credit Agreement (other than the Existing Letters of Credit) shall have been terminated or canceled.
(k) The Administrative Agent shall have received evidence in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality it that all of the provisions of the last paragraph requirements 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 6.6 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 been satisfied.
(l) The Administrative Agent shall have received notice an Account Designation Letter, together with written instructions from an Authorized Officer, including wire transfer information, directing the payment of the proceeds of the initial Loans to be made hereunder.
(m) The Administrative Agent and each Lender shall have received such Lender prior other documents, certificates, opinions and instruments in connection with the transactions contemplated hereby as it shall have reasonably requested. The Borrower and the Existing Lenders hereby agree that (i) the commitments of the Existing Lenders under the Existing Credit Agreement shall terminate in their entirety immediately and automatically upon the Restatement Effective Date, without further action by any party to the proposed Closing Date specifying its objection theretoExisting Credit Agreement, (ii) all accrued fees under the Existing Credit Agreement shall be due and payable at such time, and (iii) the Borrower shall prepay any and all loans outstanding thereunder on the Restatement Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Old Dominion Freight Line Inc/Va)
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings on the Closing Date of its Loans initial Borrowing hereunder is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies the date of this Agreement (followed promptly by originals) unless otherwise specified) and, except for the Notes and any certificates or instruments required to be delivered under the Pledge and Security Agreement, in sufficient copies for each properly Lender:
(i) a Note for each Lender that is a party hereto as of the Closing Date, in the amount of such Lender's Commitment, duly completed in accordance with SECTION 2.4 and executed by a Responsible Officer the Borrower;
(ii) an agreement of the signing Loan PartySubsidiary Guarantors consenting to this Agreement and acknowledging their continuing obligations under the Subsidiary Guaranty with respect to the Obligations;
(iii) the Pledge and Security Agreement, duly completed and executed by the Borrower and by each dated Subsidiary Guarantor, together with any certificates evidencing the Capital Stock pledged thereunder as of the Closing Date and undated assignments separate from certificate for any such certificate, duly executed in blank, and any promissory notes pledged thereunder, duly endorsed in blank; and
(oriv) the favorable opinions of Mungxx, Xxllxx & Xlsox, special counsel to the Borrower, in substantially the case form of certificates EXHIBIT G, addressed to the Agent and the Lenders and addressing such other matters as the Agent may reasonably request.
(b) The Agent shall have received a certificate, signed by the president, the chief executive officer or the chief financial officer of governmental officialsthe Borrower, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
Agent, certifying that (i) executed counterparts all representations and warranties of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower contained in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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 Credit Documents are true and correct as of the Closing Date, both immediately before and after giving effect to which such Loan Party the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (iii) both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, no Material Adverse Change has occurred since December 31, 1999 and there exists no event, condition or state of facts that could reasonably be expected to result in a party;
Material Adverse Change, and (iv) copies all conditions to the initial extensions of credit hereunder set forth in this Section and in SECTION 3.2 have been satisfied or waived as required hereunder.
(c) The Agent shall have received a certificate of the Organization Documents secretary or an assistant secretary of each Loan Party certified of the Borrower and the Subsidiary Guarantors, in form and substance satisfactory to be the Agent, certifying (i) that attached thereto is a true and complete copy of the articles or certificate of incorporation and all amendments thereto of the Borrower or such Subsidiary Guarantor, as the case may be, certified as of a recent date by the appropriate Secretary of State (or comparable Governmental Authority Authority) of the state or other its jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease bylaws of the Borrower or operation of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each LenderSubsidiary Guarantor, as the case may be, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such matters concerning certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the Loan Parties and board of directors of the Loan Documents Borrower or such Subsidiary Guarantor, as the Administrative Agent case may request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consentsbe, licenses and approvals required in connection with authorizing the execution, delivery and performance by such Loan Party of this Agreement and the validity against such Loan Party of the Loan other Credit Documents to which it is a party, and such consents, licenses as to the incumbency 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 genuineness of the signature of each officer of the Borrower certifying (A) that or such Subsidiary Guarantor, as the conditions specified in Sections 4.01(d)case may be, (e) executing this Agreement or any of such other Credit Documents, and (f) have been satisfied, (B) that there has been no event or circumstance since the date attaching all such copies 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent)documents described above.
(d) The representations and warranties Agent shall have received (i) a certificate as of a recent date of the good standing of each of the Borrower and each other Loan Party contained in Section 5 its Subsidiaries under the laws of its jurisdiction of organization, from the Secretary of State (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 in all material respects on and as of the date comparable Governmental Authority) of such Loanjurisdiction, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality certificate as of a recent date of the provisions qualification of each 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.Borrower
Appears in 1 contract
Samples: Credit Agreement (Orthalliance Inc)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of its Loans hereunder is subject to shall occur upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each of which shall be originals or telecopies or in an electronic format acceptable to the Administrative Agent (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Authorized Officer of the signing Loan PartyBorrower, each dated as of the Closing Date and in such number of copies as the Administrative Agent shall have reasonably requested (or, in the case of certificates of governmental officials, a recent date before prior to the Closing Date) and each in a form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution ;
(ii) to the Administrative Agentextent requested by any Lender in accordance with Section 2.5(d), a Note or Notes for such Lender, in each Lender case duly completed in accordance with the provisions of Section 2.5(d) and executed by the Borrower;
(iiiii) a Note executed if any LIBOR Loans are to be borrowed prior to the 3rd Business Day after the Closing Date by the Borrower, the Administrative Agent shall have received, 3 Business Days prior to the date such LIBOR Loans are to be borrowed, a pre-funding LIBOR indemnity letter from the Borrower in favor and a completed Notice of each Lender requesting a NoteBorrowing;
(iiiiv) such certificates of resolutions or other actiona certificate, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as signed by a Responsible Officer of the Borrower, certifying that (i) all representations and warranties of the Borrower contained in connection with this Agreement and the other Loan Credit Documents qualified as to materiality shall be true and correct and those not so qualified shall be true and correct in all material respects, in each case as of the Closing Date, both immediately before and after giving effect to the transactions contemplated hereby (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such Loan Party representation or warranty shall be true and correct as of such date), (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the transactions contemplated hereby, (iii) both immediately before and after giving effect to the transactions contemplated hereby, (iii) both immediately before and after giving effect to the transactions contemplated hereby, no Material Adverse Effect has occurred since December 31, 2012, and there exists no event, condition or state of facts that would reasonably be expected to result in a partyMaterial Adverse Effect, and (iv) all conditions to the initial extensions of credit hereunder set forth in this Section 3.1 and in Section 3.2 have been satisfied or waived as required hereunder;
(ivv) copies a certificate of the Organization Documents secretary or an assistant secretary of each Loan Party certified to be the Borrower as of the Closing Date, certifying (i) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of the Borrower, certified as of a recent date by the appropriate Secretary of State (or comparable Governmental Authority Authority) of the state or other its jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the Loan Parties is validly existingbylaws, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease operating agreement or operation similar governing document of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each LenderBorrower, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such matters concerning certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the Loan Parties and board of directors (or similar governing body) of the Loan Documents as the Administrative Agent may request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consentsBorrower, licenses and approvals required in connection with authorizing the execution, delivery and performance by such Loan Party of this Agreement and the validity against such Loan Party of the Loan other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of the Borrower executing this Agreement or any of such consentsother Credit Documents, licenses and approvals shall be in full force and effect, or (B) stating that no attaching all such consents, licenses or approvals are so requiredcopies of the documents described above;
(viivi) a certificate signed by as of a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) have been satisfied, (B) that there has been no event or circumstance since the recent 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer good standing of the Borrower as of the Closing Date, under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction;
(vii) the favorable opinions of (A) Shearman & Sterling LLP, special counsel to the Borrower and its Subsidiaries, and (B) in-house counsel to the Borrower and its Subsidiaries, addressing such matters as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xiviii) a Financial Conditions Certificate executed by the chief financial officer of the Borrower containing the copies of the financial statements referred to in Section 4.11 and confirming that, as of the Closing Date, after giving effect to the consummation of the transactions contemplated hereby, the Borrower and its Subsidiaries on a consolidated basis are solvent; and
(ix) no later than three Business Days prior to the Closing Date, any information required by the Patriot Act or necessary for the Administrative Agent or any Lender to verify the identity of the Borrower as required by the Patriot Act or other “know your customer” and anti-money laundering rules and regulations; provided that such information shall have been requested by the Administrative Agent and the Lenders reasonably in advance of the Closing Date.
(b) All approvals, permits and consents of any Governmental Authorities, any Self-Regulatory Organizations, or other assurancesPersons required in connection the consummation of any of the transactions contemplated hereby shall have been obtained, certificates, documents, consents or opinions as without the imposition of conditions that are materially adverse to the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder Lenders; all applicable waiting periods shall have expired without any adverse action being taken or under the Fee Letters on threatened by any Governmental Authority or before the Closing Date Self-Regulatory Organization having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agentinstituted, the Borrower threatened or proposed before, and no order, injunction or decree shall have paid all reasonable feesbeen entered by, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or other Governmental Authority or any Self-Regulatory Organization, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or to impose materially adverse conditions upon, this Agreement, any of the other Credit Documents or the consummation of the transactions contemplated hereby or that could would reasonably be expected to have a Material Adverse Effect.
(c) [Reserved].
(d) Since December 31, 2012, both immediately before and after giving effect to the transactions contemplated hereby, there shall not have occurred (i) a Material Adverse Effect or (ii) any event, condition or state of facts that would reasonably be expected to have a Material Adverse Effect.
(e) The Borrower shall have paid (i) to the Arrangers, the fees required under the Joint Fee Letter to be paid to them on the Closing Date, in the amounts due and payable on the Closing Date as required by the terms thereof, (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Xxxxx Fargo Fee Letter, and (iii) all other fees and reasonable expenses of the Arrangers, the Administrative Agent and the Lenders required to be paid on or prior to the Closing Date (including reasonable fees and expenses of counsel) in connection with this Agreement and the other Credit Documents.
(f) [Reserved].
(g) The Administrative Agent shall have received a Committed Loan Notice in accordance an Account Designation Letter, together with written instructions from an Authorized Officer of the requirements hereofBorrower, including wire transfer information, directing the payment of the proceeds of any Loans made hereunder.
(jh) The Parent REIT and the Borrower Arrangers shall have entered into (i) the PNC Facilityreceived, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative AgentArrangers, (i) copies of satisfactory audited consolidated financial statements for the Borrower and NYSE (with respect to NYSE, such as have been filed with the Securities and Exchange Commission) for the fiscal years ended December 31, 2011 and 2012, (ii) copies of satisfactory unaudited consolidated financial statements of the Borrower and NYSE (with respect to NYSE, such as have been filed with the Securities and Exchange Commission) for each interim quarterly period (excluding fiscal year end) ended after the latest fiscal year referred to in clause (i) above and at least 45 days prior to the Closing Date, and unaudited consolidated financial statements for the same period of the prior fiscal year, (iii) pro forma consolidated financial statements as required to be included in the registration statement filed on Form S-4 with the Securities and Exchange Commission to register the shares being issued by New ICE Parent to NYSE stockholders, and (iv) copies of all financial statements for NYSE which are publicly available or otherwise in the possession of the Borrower or are required to be prepared by any applicable governmental authority or applicable law including without limitation all financial statements to be included in a registration statement the registration statement filed on Form S-4 with the Securities and Exchange Commission to register the shares being issued by New ICE Parent to NYSE stockholders.
(i) The Closing Date shall have occurred not later than the earlier of (i) 5:00 p.m., Local Time, on December 31, 2013 or, if the “Termination Date” referred to in the NYSE Merger Agreement is extended to a later date as provided in Section 6.2(a) of the NYSE Merger Agreement, such later date (but in any event no later than March 31, 2014) and (ii) the date of termination of the NYSE Merger Agreement or the public announcement by the Borrower of its intention not to proceed with the NYSE Merger Transactions. Without limiting the generality of the provisions of the last paragraph of Section 9.039.3, for purposes of determining compliance with the conditions specified in this Section 4.013.1, 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 Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly 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 each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a NoteNote at least two Business Days prior to the Closing Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the 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 the Borrower is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Borrower is duly organized or formed, and that each of the Loan Parties Borrower is validly existing, existing and in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationorganization;
(vi) a favorable an opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, in-house counsel to for the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to such matters concerning in the Loan Parties form of Exhibit E-1 and (ii) an opinion of Wachtell, Lipton, Rosen, & Kxxx, special counsel for the Loan Documents as Borrower, in the Administrative Agent may requestform of Exhibit E-2;
(vi) a certificate of signed by a Responsible Officer of each Loan Party either (A) attaching copies of all consentsthe Borrower certifying that there has been no event or circumstance since December 31, licenses and approvals required in connection with the execution2006, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents that has had or could be reasonably expected to which it is have 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 requiredMaterial Adverse Effect;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) as to the accuracy and completeness of the Acquisition Documents, copies of which shall be attached thereto, and certifying that the conditions specified in Sections 4.01(d)Acquisition shall have been, (e) and (f) have been satisfiedor substantially simultaneously with the effectiveness of this Agreement shall be, (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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017consummated;
(viii) a duly completed Compliance Certificate as satisfactory evidence that the Existing Credit Facilities shall have been, or will be substantially contemporaneously with the effectiveness of the last day of the fiscal quarter of the Borrower ended on June 30this Agreement, 2017, signed by a Responsible Officer of the Borrowerterminated and repaid in full;
(ix) satisfactory evidence that all insurance required to (A) the Five-Year Working Capital Credit Agreement and (B) the 364-Day Bridge Credit Agreement, dated on or about the date hereof, by and among the Borrower, Wachovia Bank, National Association, as administrative agent, and the lenders party thereto shall have been, or will be maintained pursuant to substantially contemporaneously with the Loan Documents has been obtained and is in effect;effectiveness of this Agreement, consummated; and
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions documents as the Administrative Agent or the Required Lenders reasonably may require.
(b) The Acquisition shall have been, or substantially simultaneously with the effectiveness of this Agreement shall be, consummated on or before November 30, 2007 in accordance with the Acquisition Agreement. The Acquisition Documents shall be reasonably satisfactory to the Arrangers, it being understood that the Acquisition Agreement dated as of February 19, 2007, as amended by Amendment No. 1 dated as of April 9, 2007, is satisfactory to the Arrangers. All conditions precedent to the consummation of the Acquisition shall have been satisfied or waived (with the prior consent of the Arrangers if the Arrangers reasonably determine such waiver is materially adverse to the Lenders).
(c) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(cd) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 1 contract
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in connection with any initial Borrowing hereunder, and the Borrowings obligation of any Issuing Bank to issue any Letters of Credit hereunder on the Closing Date of its Loans hereunder Date, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies (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 Dateunless otherwise specified) and each in form and substance satisfactory to such number of copies as the Administrative Agent and each of the Lendersshall have requested:
(i) executed counterparts of this Agreement;
(ii) to the extent requested by any Lender in accordance with Section 2.4(d), sufficient a Note or Notes for such Lender, in number each case duly completed in accordance with the provisions of Section 2.4(d) and executed by each Borrower;
(iii) the Guaranty, duly completed and executed by each Material U.S. Subsidiary;
(iv) the Security Agreement, duly completed and executed by Xxxxxxxx and each Material U.S. Subsidiary, together with any certificates evidencing the Capital Stock being pledged thereunder as of the Closing Date (limited to 65% of the voting Capital Stock of any first-tier Foreign Subsidiary (other than a Foreign Subsidiary Borrower) to the extent and for distribution so long as, the pledge of any greater percentage would have material adverse federal tax consequences for Xxxxxxxx, but including 100% of the non-voting Capital Stock of any such Foreign Subsidiary) and undated assignments separate from certificate for any such certificate, duly executed in blank;
(v) each Foreign Pledge Document to be executed on the Closing Date, duly completed and executed by each Consolidated Entity party thereto;
(vi) a confirmation related to each control agreement for each deposit account of each U.S. Credit Party (other than (A) deposit accounts that are swept (1) at least twice per week, with respect to deposit accounts maintained in the United States, or (2) on a weekly basis, with respect to deposit accounts maintained in any other country, or, in each case, on a less frequent basis reasonably acceptable to the Administrative Agent, each Lender into other deposit accounts as to which the Administrative has a perfected security interest pursuant to Section 9-314 of the UCC, (B) payroll accounts, benefit accounts, trust and similar customer accounts, escrow accounts and tax payment accounts and (C) other deposit accounts, securities accounts or commodities accounts (provided that the Borroweraggregate balance in all accounts described by this clause (C) does not exceed $2,000,000)), duly executed by the parties thereto and in form and substance reasonably satisfactory to the Administrative Agent; provided that, to the extent Xxxxxxxx is unable to deliver any such confirmation prior to the date on which all other conditions precedent set forth in this Article IV are satisfied, then the delivery of such control agreement shall not be a condition precedent to closing and Xxxxxxxx shall have 60 days (or such longer period agreed to by the Administrative Agent) following the Closing Date to deliver such control agreement;
(iivii) a Note executed landlord waiver for the Realty at which Xxxxxxxx’x corporate headquarters is located; provided that, to the extent Xxxxxxxx is unable to deliver such landlord waiver prior to the date on which all other conditions precedent set forth in this Article IV are satisfied, then the delivery of such landlord waiver shall not be a condition precedent to closing and Xxxxxxxx shall use commercially reasonable efforts to obtain and deliver such landlord waiver within 60 days (or such longer period agreed to by the Borrower in favor of each Lender requesting a NoteAdministrative Agent) following the Closing Date;
(iiiviii) such certificates Assignments and Grants of resolutions Security Interests for the Intellectual Property registered in the United States Patent and Trademark Office or other actionthe United States Copyright Office referred to in Annexes D, incumbency certificates and/or other certificates E and F of Responsible Officers the Security Agreement, in substantially the form of Exhibits B and C (as applicable) to the Security Agreement, in each case duly completed and executed by each applicable U.S. Credit Party; and
(ix) the favorable opinions of (A) Dentons US LLP, special counsel to the Consolidated Entities, and (B) local foreign counsel to the applicable Credit Parties (or to the Administrative Agent) in the jurisdiction of organization of each Loan Party as Foreign Subsidiary Borrower, all in form and substance reasonably satisfactory to the Administrative Agent.
(b) The Administrative Agent may require evidencing shall have received a certificate, signed by the identitypresident, authority chief executive officer, chief financial officer or treasurer of Xxxxxxxx, dated the Closing Date and capacity in form and substance reasonably satisfactory to the Administrative Agent, certifying that (i) all representations and warranties of each Responsible Officer thereof authorized to act as a Responsible Officer the Credit Parties contained in connection with this Agreement and the other Loan Credit Documents qualified as to materiality shall be true and correct and those not so qualified shall be true and correct in all material respects, in each case as of the Closing Date, both immediately before and after giving effect to the consummation of the transactions contemplated hereby to occur on the Closing Date and the making of any initial Loans and the application of the proceeds thereof (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such Loan Party representation or warranty shall be true and correct as of such date); (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation the transactions contemplated hereby to occur on the Closing Date and the making of any initial Loans and the application of the proceeds thereof; (iii) both immediately before and after giving effect to the consummation of the transactions contemplated hereby to occur on the Closing Date and the making of any initial Loans and the application of the proceeds thereof, no Material Adverse Effect has occurred since December 31, 2016, and there exists no event, condition or state of facts that could reasonably be expected to result in a party;
Material Adverse Effect; and (iv) copies all conditions to the initial extensions of credit hereunder set forth in this Section 4.1 and in Section 4.2 have been satisfied or waived as required hereunder.
(c) The Administrative Agent shall have received a certificate of the Organization Documents secretary or an assistant secretary or officer or director with similar responsibilities of each Loan Credit Party certified executing any Credit Documents as of the Closing Date, dated the Closing Date and in form and substance reasonably satisfactory to be the Administrative Agent, certifying (i) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of such Credit Party, certified as of a recent date by the appropriate Secretary of State (or comparable Governmental Authority Authority) of the state or other its jurisdiction of its incorporation or organization, where organization (if applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the Loan Parties is validly existingbylaws, in good standing and qualified to engage in business in each jurisdiction where its ownershipoperating agreement, lease constitutional documents or operation similar governing document of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each LenderCredit Party, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such matters concerning certificate, (iii) that attached thereto is a true and complete copy of resolutions adopted by the Loan Parties and the Loan Documents as the Administrative Agent may request;
board of directors (vior similar governing body) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consentssuch Credit Party, licenses and approvals required in connection with authorizing the execution, delivery and performance by such Loan Party of this Agreement and the validity against such Loan Party of the Loan other Credit Documents to which it is a party, and (iv) as to the incumbency and genuineness of the signature of each officer or director of such consentsCredit Party executing this Agreement or any of such other Credit Documents, licenses and approvals attaching all such copies of the documents described above.
(d) The Administrative Agent shall have received a certificate as of a recent date of the good standing of each Credit Party (other than any Credit Party organized in the United Kingdom or Australia) executing any Credit Documents as of the Closing Date, under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction.
(e) All approvals, permits and consents of any Governmental Authorities or other Persons required in connection with the execution and delivery of this Agreement and the other Credit Documents shall have been obtained, without the imposition of conditions that are not acceptable to the Administrative Agent in its reasonable discretion, and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in full force and effecteffect and the Administrative Agent shall have received such copies thereof as it shall have reasonably requested; all applicable waiting periods shall have expired without any adverse action being taken or threatened by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before, and no order, injunction or decree shall have been entered by, any court or other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or (B) stating that no such consentsto impose materially adverse conditions upon, licenses this Agreement or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each any of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents Credit Documents or opinions as the Administrative Agent or the Required Lenders that could reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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, have a Material Adverse Effect.
(f) The Administrative Agent shall have received certified reports from an independent search service satisfactory to it listing any judgment or tax lien filing or UCC financing statement that names any Borrower or any of their respective U.S. Subsidiaries as debtor in any of the jurisdictions listed beneath its name on Annex B to the Security Agreement, as well as lien search results with respect to the Foreign Credit Parties in their jurisdiction of organization, and the results thereof shall be reasonably satisfactory to the Administrative Agent.
(g) The Administrative Agent shall have received evidence in form and substance satisfactory to it that all filings, recordings, registrations and other actions (including the filing of duly completed UCC-1 financing statements in each jurisdiction listed on Annex A to the Security Agreement) necessary to perfect the Liens created hereunder or under the Security Documents shall have been completed, or arrangements satisfactory to the Administrative Agent for the completion thereof shall have been made.
(h) The absence Since December 31, 2016, both immediately before and after giving effect to the consummation of the transactions contemplated hereby to occur on the Closing Date and the making of any condition, circumstance, action, suit, investigation or proceeding pending or, to initial Loans and the knowledge application of the Borrower and/or Guarantorsproceeds thereof, threatened in there shall not have occurred (i) a Material Adverse Effect or (ii) any court event, condition or before any arbitrator or Governmental Authority state of facts that could reasonably be expected to have a Material Adverse Effect.
(i) Xxxxxxxx shall have paid (i) to the Arrangers and Xxxxx Fargo, the fees required under the Fee Letters to be paid to them on the Closing Date, in the amounts due and payable on the Closing Date as required by the terms thereof; (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Fee Letters; and (iii) all other fees and reasonable expenses of the Arrangers and the Administrative Agent required hereunder or under any other Credit Document required to be paid on or prior to the Closing Date (including reasonable fees and expenses of counsel) in connection with this Agreement, the other Credit Documents and the transactions contemplated hereby.
(j) The Administrative Agent shall have received copies of the financial statements referred to in Section 5.11(a).
(k) The Administrative Agent shall have received an executed Financial Condition Certificate, attaching copies of the Projections, all of which shall be in form and substance satisfactory to the Administrative Agent.
(l) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facilitysolvency certificate, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent. Without limiting , from a Financial Officer of each Foreign Credit Party.
(m) The Administrative Agent shall be satisfied that, on a pro forma basis after giving effect to the generality of the provisions of the last paragraph of Section 9.03transactions contemplated hereby, for purposes of determining Xxxxxxxx is in compliance with the conditions specified financial covenants 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 Article VII as of the Closing Date.
(n) The Administrative Agent shall have received notice an Account Designation Letter for each Borrower, together with written instructions from such Lender prior an Authorized Officer of Xxxxxxxx, including wire transfer information, directing the payment of the proceeds of the initial Loans to be made hereunder.
(o) The Administrative Agent shall have received from each Borrower all documentation and other information requested by the proposed Closing Date specifying its objection theretoAdministrative Agent that is required to satisfy applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
Appears in 1 contract
Samples: Credit Agreement (Crawford & Co)
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings on initial Borrowing hereunder, and the Closing Date obligation of its Loans hereunder the Issuing Bank to issue Letters of Credit hereunder, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orunless otherwise specified) and, except for the Notes and the certificates and instruments required to be delivered under the Security Agreements, in sufficient copies for each Lender:
(i) counterparts hereof, dated as of the date hereof and signed by each of the parties hereto;
(ii) a Revolver A Note and Revolver B Note for the account of each Lender that is a party hereto as of the Closing Date, in the case amount, respectively, of certificates such Lender's Revolver A Commitment and Revolver B Commitment and duly completed and executed by the Borrower;
(iii) a Bid Loan Note for the account of governmental officials, each Lender that is a recent date before party hereto as of the Closing Date, in the amount of the aggregate Revolver A Commitments and duly completed and executed by the Borrower;
(iv) the Guaranty, duly completed and executed by the Guarantors;
(v) the Security Agreements, duly completed and executed by the Borrower and the Guarantors owning any property of the type covered thereby, together with all certificates evidencing the capital stock being pledged thereunder and undated stock powers for each such certificate, duly executed in blank, and any promissory notes being pledged thereunder, duly endorsed in blank;
(vi) arrangements satisfactory to the Administrative Agent shall have been made for the proper filing or recording of each document (including Financing Statements) required by law or reasonably requested by the Administrative Agent to be filed or recorded in each jurisdiction in which the filing or recording is so required or requested in order to create in favor of the Administrative Agent, for the benefit of the Lenders, a valid, legal and perfected first priority security interest in or lien on the Collateral that is the subject of the Security Agreements, subject only to Permitted Liens;
(vii) a certificate, signed by the chief executive officer or chief financial officer of the Borrower, in form and substance satisfactory to the Administrative Agent Agent, certifying that (A) all representations and each warranties of the Lenders:
(i) executed counterparts of this Agreement, sufficient Borrower contained in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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 are true and correct as of the Closing Date, both immediately before and after giving effect to which such Loan Party the Merger and any Loans to be made on the Closing Date hereunder and the application of the proceeds thereof, (B) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the Merger and any Loans to be made on the Closing Date hereunder and the application of the proceeds thereof, (C) both immediately before and after giving effect to the consummation of the Merger and other transactions contemplated by this Agreement, no Material Adverse Change has occurred since December 31, 1998, and there exists no event, condition or state of facts related to the business of the Borrower and its Subsidiaries that could reasonably be expected to result in a partyMaterial Adverse Change, (D) the Borrower has satisfied each of the conditions set forth in this Section applicable to the Borrower and its Subsidiaries, and (E) all conditions to the consummation of the Merger have been satisfied and have not been waived or amended without the prior written consent of the Administrative Agent;
(ivviii) copies a certificate of the Organization Documents secretary or an assistant secretary of each Loan Party certified of the Borrower and its Subsidiaries, in form and substance satisfactory to be the Administrative Agent, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation and all amendments thereto of the Borrower or such Subsidiary, as the case may be, certified as of a recent date by the appropriate Secretary of State (or comparable Governmental Authority Authority) of the state or other its jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease bylaws of the Borrower or operation of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each LenderSubsidiary, as the case may be, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such matters concerning certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the Loan Parties and board of directors of the Loan Documents Borrower or such Subsidiary, as the Administrative Agent case may request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consentsbe, licenses and approvals required in connection with authorizing 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 as to the incumbency 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 genuineness of the signature of each officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d)or such Subsidiary executing any of such Loan Documents, (e) and (f) have been satisfied, (B) that there has been no event or circumstance since the date attaching all such copies of the Audited Financial Statements documents described above; provided, that has had or could be non-corporate Subsidiaries shall provide comparable documentation as appropriate and reasonably expected satisfactory to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the BorrowerAdministrative Agent;
(ix) evidence certificates as of a recent date of (A) the good standing of each of the Borrower and its Subsidiaries under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction, (B) the qualification of each of the Borrower and its Subsidiaries to conduct business as foreign corporations in the states where each is qualified to conduct business and, (C) where reasonably available from the department of revenue or other appropriate Governmental Authority, that the Borrower and each Subsidiary has filed all insurance required to be maintained pursuant tax returns and owes no delinquent taxes; provided, that non-corporate Subsidiaries shall provide comparable certificates to the Loan Documents has been obtained extent available and is in effectsuch other documentation reasonably requested by the Administrative Agent;
(x) the favorable opinions of Mayor, Day, Xxxxxxxx & Xxxxxx, L.L.P., counsel to the Borrower, and Xxxxxxx X. Xxxxx, general counsel to the Borrower, addressed to the Administrative Agent and the Lenders, in form and substance satisfactory to the Administrative Agent and each Lender;
(xi) a certificate executed by a Responsible Officer copy of each opinion delivered in connection with the Borrower as Merger;
(xii) certificates, and copies of the Closing Datepolicies, of insurance, in form and substance satisfactory to the Administrative Agent, regarding upon the Solvency of (A) Collateral and the Borrower, (B) each business of the other Loan Parties, Borrower and (C) the Consolidated Parties on a consolidated basiseach Guarantor; and
(xixiii) such other assurancesrevisions, certificatesif any, documentsto the schedules to this Agreement reflecting any additional or changed matters as of the Closing Date, consents or opinions as in form and substance reasonably satisfactory to the Administrative Agent or and the Required Lenders reasonably may requireLenders.
(b) Any fees All legal matters, documentation and corporate or other proceedings incident to the transactions contemplated hereby shall be reasonably acceptable to the Administrative Agent; all approvals, permits and consents of any Governmental Authorities or other Persons required to be paid hereunder or under in connection with the Fee Letters on or before execution and delivery of this Agreement and the Closing Date consummation of the Merger and other transactions contemplated hereby shall have been paid obtained (provided without the imposition of conditions that are not reasonably acceptable to the Administrative Agent), and all related filings, if any, shall have been made, and all such fees may approvals, permits, consents and filings shall be paid from in full force and effect and the proceeds Administrative Agent shall have received such copies thereof as it shall have requested; all applicable waiting periods shall have expired without any adverse action being taken by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before, and no order, injunction or decree shall have been entered by, any court or other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or that is otherwise related to or arises out of, this Agreement or the consummation of such initial Loan).
(c) Unless waived by the Merger and the other transactions contemplated hereby, or that, in the opinion of the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any event or circumstance since the date of the Audited Financial Statements that has had or could otherwise be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected likely to have a Material Adverse Effect.
(c) Since December 31, 1998, both immediately before and after giving effect to the consummation of the Merger and other transactions contemplated by this Agreement, there shall not have occurred any Material Adverse Change or any event, condition or state of facts relating to the business of the Borrower and its Subsidiaries that could reasonably be expected to result in a Material Adverse Change, other than as specifically contemplated by this Agreement and the other Loan Documents.
(d) The Borrower shall have paid (i) to the Administrative Agent, the initial quarterly installment of the annual administrative fee and (ii) all other fees and expenses of the Administrative Agent and the Lenders for which the Borrower has received an invoice required hereunder or under any other Loan Document to be paid on or prior to the Closing Date (including fees and expenses of counsel) in connection with this Agreement and the transactions contemplated hereby.
(e) The Administrative Agent shall have received certified reports from an independent search service satisfactory to it listing any judgment or tax lien filing or Uniform Commercial Code financing statement that names the Borrower or any Subsidiary as debtor in the jurisdictions selected by the Administrative Agent and the results thereof shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received an Account Designation Letter, together with written instructions from an Authorized Officer of the Borrower, including wire transfer information, directing the payment of the proceeds of the initial Loans to be made hereunder.
(g) The Lenders shall have received (i) the Financial Statements, (ii) a Committed Loan Notice in accordance pro forma balance sheet of the Borrower as of a recent date and giving effect to the Merger and the initial Loans and the other transactions contemplated hereunder (iii) a Covenant Compliance Worksheet, duly completed and certified by the chief financial officer of the Borrower, demonstrating the Borrower's compliance with the requirements hereoffinancial covenants set forth in SECTIONS 6.11 through 6.15, determined on a pro forma basis as of June 30, 1999 after giving effect to the Merger and the initial Loans and the other transactions contemplated hereunder and (iv) projected financial statements (including balance sheets and statements of income and cash flows) of the Borrower and its Subsidiaries prepared on an annual basis through December 31, 2003, in each case in form and substance satisfactory to the Administrative Agent.
(h) All taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of any of the Loan Documents shall have been paid by the Borrower.
(i) All aspects of the structure and documentation of the Merger and this Agreement, all legal, tax, accounting and other matters relating to the Merger and this Agreement, and all corporate or other proceedings incident to the Merger and this Agreement, shall be reasonably satisfactory in form and substance to the Administrative Agent and the Lenders, and the Administrative Agent shall have received copies of the executed Merger Documents in such number as it shall have reasonably requested.
(j) The Parent REIT and Merger Documents shall not have been amended, modified or supplemented, nor any provision thereof waived, in any material respect since the Borrower date thereof, except as shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each been approved in form and substance reasonably satisfactory to writing by the Administrative Agent. Without limiting ; each of American Oncology Resources, Inc., Physicians Reliance Network, Inc. and Diagnostic Acquisition, Inc. shall have duly complied with and performed in all material respects all of its agreements and conditions set forth in the generality of Merger Documents and required to be complied with or performed by it on or prior to the provisions of closing date thereunder; 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 Merger Documents 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 in full force and effect; the Administrative Agent shall have received notice from such Lender prior evidence satisfactory to it that, concurrently with the making of the initial Loans hereunder, all material conditions to closing the Merger set forth in the Merger Documents shall have been met or waived with the consent of the Administrative Agent and the Merger shall be consummated in accordance with the terms of the Merger Documents and in compliance with all applicable Requirements of Law, including any necessary stockholder approvals.
(k) The Administrative Agent shall have received evidence satisfactory to it that (i) concurrently with the making of the initial Loans hereunder, (x) all principal, interest and other amounts outstanding with respect to the proposed Closing Date specifying Debt of the Borrower and its objection theretoSubsidiaries, other than as allowed pursuant to SECTION 6.3, shall be repaid and satisfied in full, (y) all commitments to extend credit under the agreements and instruments relating thereto shall be terminated, and (z) any Liens securing any such Debt shall be released and any related filings terminated of record (or arrangements satisfactory to the Administrative Agent made therefor), and (ii) any letters of credit outstanding with respect to such Debt shall have been terminated or canceled.
(l) The Administrative Agent and each Lender shall have received such other documents, certificates, and instruments as the Administrative Agent or any Lender shall have reasonably requested.
Appears in 1 contract
Samples: Loan Agreement (Us Oncology Inc)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals, to the extent applicable) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Partyapplicable Persons, each dated the Closing Date (or, in the case of certificates of governmental officials, a reasonably 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, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerLoan Documents;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer of each Loan Party the Borrower, the Borrower Parent and the Investment Adviser 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 Person is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party of the Borrower, the Borrower Parent and the Investment Adviser is duly organized organized, incorporated or formedregistered, as applicable, and that each of the Loan Parties Borrower, the Borrower Parent and the Investment Adviser is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownershipof organization, lease incorporation or operation of properties or the conduct of its business requires such qualificationregistration;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx Dechert LLP, counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to such the matters concerning the Loan Parties Borrower, the Borrower Parent, the Investment Adviser and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the 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;
(vii) a certificate of a Responsible Officer of each Loan Party of the Borrower, the Borrower Parent and the Investment Adviser either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party Person and the validity against such Loan Party 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;
(viiviii) a certificate signed by a Responsible Officer evidence satisfactory to the Administrative Agent in its sole discretion that the Net Asset Value of Borrower is at least equal to $10,000,000;
(ix) evidence satisfactory to the Administrative Agent in its sole discretion that since the date of the Borrower certifying (A) that the conditions specified in Sections 4.01(d)most recent Audited Financial Statements, (e) and (f) 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 havecircumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;and
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date that have been invoiced shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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: Omnibus Amendment to Loan Documents (Palmer Square Capital BDC Inc.)
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in respect of the Borrowings on the Closing Date of its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifiedtelecopies, each properly executed by a Responsible Officer of the signing Loan Partyapplicable Persons, each dated the Closing Date (or, in the case of certificates of governmental officials, a reasonably 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, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerLoan Documents;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer of each Loan Party the Borrower, the Seller and the Servicer 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 Person is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party of the Borrower, the Seller and the Servicer is duly organized organized, incorporated or formedregistered, as applicable, and that each of the Loan Parties Borrower, the Seller and the Servicer is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownershipof organization, lease incorporation or operation of properties or the conduct of its business requires such qualificationregistration;
(v) a favorable opinion opinions of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx Dechert LLP, United States counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to such the matters concerning the Loan Parties Borrower, the Seller, the Servicer and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Section 4.02 have been satisfied and (B) that there has been no event or circumstance since the date of the formation of the Borrower that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(vii) a certificate of a Responsible Officer of each Loan Party of the Borrower, the Seller and the Servicer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party Person and the validity against such Loan Party 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;
(viiviii) certified resolutions of the Borrower, authorizing its entry into the transactions contemplated herein and in each other Loan Document to which it is a party;
(ix) a certificate signed by of a Responsible Officer of the Borrower certifying attaching its Organization Documents (A) that as in effect on the conditions specified in Sections 4.01(ddate hereof), (e) a certificate of good standing and (f) 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 resolutions referred to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
clause (viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect);
(x) a certificate executed by a Responsible Officer of the Borrower as of documentation and other information that has been requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least 10 days prior to the Closing Date;
(xi) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basisBeneficial Ownership Certification; and
(xixii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date that have been invoiced shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of outside counsel to the Administrative Agent Secured Parties (directly to such counsel if requested by the Administrative Agentany such Secured Party) to the extent invoiced 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 Borrower and such Secured Party); provided, however, that such fees, charges and disbursements shall only be due and payable to the Administrative Agent)extent provided pursuant to Section 11.04.
(d) The representations and warranties of the Borrower Borrower, the Seller and the Servicer contained herein and in each other Loan Party contained in Section 5 or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, (I) to the extent already qualified with respect to “material” matters or “Material Adverse Effect”, shall be true and correct on and as of the Closing Date and (II) to the extent not already qualified with respect to “material” matters or “Material Adverse Effect”, shall be true and correct in all material respects on and as of the date of such LoanClosing 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 respects, or as so qualified, as applicable) as of such earlier date, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default or Event of Default shall exist, or would result from, from such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower Administrative Agent and the Lenders shall be have a valid and perfected first-priority lien and security interest in compliance the Collateral, subject to Permitted Liens, all filings (on a Pro Forma Basis taking into account including all UCC financing statements and similar filings contemplated by the applicable Loan) Security Agreement, the Master Participation Agreement and the Sale Agreement, including all back-up filings in relation to Collateral Assets sold thereunder), recordations and searches necessary or desirable in connection with the financial covenants set forth Collateral shall have been duly made, or copies of such financing statements in Section 7.11form suitable for filing shall have been provided to the Administrative Agent, and all filing and recording fees and taxes shall have been or will be duly paid, including in each case under, and as required by, all Applicable Laws.
(g) There shall not have occurred any event or circumstance since All governmental and third party approvals necessary or, in the date discretion of the Audited Financial Statements Lender, advisable in connection with the Borrowing shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that has had would restrain, prevent or could be reasonably expected to have, either individually or in otherwise impose adverse conditions on the aggregate, a Material Adverse EffectLender making the Borrowing.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent initial Lender shall have received a Committed Loan Notice and reviewed all financial statements required to be delivered under Section 6.01 and, in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower each case, such financial statements shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably be satisfactory to 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 initial Lender 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 theretosole discretion.
Appears in 1 contract
Samples: Credit Agreement (Nuveen Churchill Private Capital Income Fund)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals, to the extent applicable) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Partyapplicable Persons, each dated the Closing Date (or, in the case of certificates of governmental officials, a reasonably 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, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerLoan Documents;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer of each Loan Party the Borrower, the Borrower Parent and the Collateral Manager 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 Person is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party of the Borrower, the Borrower Parent and the Collateral Manager is duly organized organized, incorporated or formedregistered, as applicable, and that each of the Loan Parties Borrower, the Borrower Parent and the Collateral Manager is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownershipof organization, lease incorporation or operation of properties or the conduct of its business requires such qualificationregistration;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx Milbank LLP, counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to such the matters concerning the Loan Parties Borrower, the Borrower Parent, the Collateral Manager and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the 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 with respect to the Borrower or Borrower Parent 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;
(vii) a certificate of a Responsible Officer of each Loan Party of the Borrower, the Borrower Parent and the Collateral Manager either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party Person and the validity against such Loan Party 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;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding Agent in its sole discretion that the Solvency Net Asset Value of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basisBorrower is at least equal to $10,000,000; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date that have been invoiced shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent and the Collateral Administrator (directly to such counsel if requested by the Administrative AgentAgent or the Collateral Administrator, as applicable) to the extent invoiced 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 Borrower and the Administrative Agent); provided, however, that such fees, charges and disbursements shall only be due and payable to the extent provided pursuant to Section 10.04.
(d) The representations and warranties of the Borrower, Borrower Parent and each other Loan Party the Collateral Manager contained in Section 5 or any other each Loan Document, or which are contained in any document (including the Beneficial Ownership Certification) furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or if such representation and warranty is already qualified by the words “material”, “materially” or “Material Adverse Effect”, then such representation and warranty shall be true and correct in all respects) on and as of the date of such LoanClosing 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 respects, or as so qualified, as applicable) as of such earlier date, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, from such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower Administrative Agent and the Lenders shall be have a valid and perfected first-priority lien and security interest in compliance the Collateral, all filings (on a Pro Forma Basis taking into account including all UCC financing statements and similar filings contemplated by the applicable Loan) Security Agreement and any Master Participation Agreement, including all back-up filings in relation to Collateral Assets sold thereunder), recordations and searches necessary or desirable in connection with the financial covenants set forth Collateral shall have been duly made, and all filing and recording fees and taxes shall have been duly paid, including in Section 7.11each case under, and as required by, all Applicable Laws.
(g) There shall not have occurred any event or circumstance since All governmental and third party approvals necessary or, in the date discretion of the Audited Financial Statements Lender, advisable in connection with the Borrowing shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that has had would restrain, prevent or could be reasonably expected to have, either individually or in otherwise impose adverse conditions on the aggregate, a Material Adverse EffectLender making the Borrowing.
(h) The absence of any conditioninitial Lender shall have received and reviewed all financial statements required to be delivered under Section 6.01 and, circumstancein each case, action, suit, investigation or proceeding pending or, such financial statements shall be satisfactory to the knowledge of the Borrower and/or Guarantors, threatened initial Lender in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effectits sole discretion.
(i) The Administrative Agent Upon the reasonable request of any Lender, the Borrower shall have received a Committed Loan Notice provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in accordance connection with applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the requirements hereofPATRIOT Act.
(j) The Parent REIT and If the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, then the Borrower shall have entered into (i) the PNC Facilitydeliver, the Bank of America Facilityto each Lender that so requests, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment Beneficial Ownership Certification in relation to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative AgentBorrower. 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 Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings initial Borrowing hereunder, and the obligation of the Issuing Lender to issue Letters of Credit hereunder on the Closing Date of its Loans hereunder Restatement Effective Date, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies the Restatement Effective Date (followed promptly by originals) unless otherwise specified) and, except for the Notes, in sufficient copies for each properly executed Lender:
(i) counterparts hereof signed by a Responsible Officer each of the signing Loan Party, each dated the Closing Date parties hereto (or, in the case of certificates of governmental officialsany party as to which an executed counterpart hereof shall not have been received, a recent date before the Closing Date) and each in form and substance satisfactory to receipt by the Administrative Agent and each in form satisfactory to it of the Lenders:
(i) executed counterparts electronic, telegraphic, telecopy, or other written confirmation from such party of this Agreementexecution of a counterpart hereof by such party), sufficient including, without limitation, Lenders holding Commitments in number for distribution to the Administrative Agent, each Lender and the Borroweran aggregate amount of $200,000,000;
(ii) to the extent requested by any Lender in accordance with Section 2.4(d), a Revolving Note for each Lender that is a party hereto as of the Restatement Effective Date, in the amount of such Lender’s Commitment, each duly completed in accordance with the relevant provisions of Section 2.4(d) and executed by the Borrower in favor of each Lender requesting a Note;Borrower; and
(iii) such certificates the favorable opinions of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as (A) 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) copies General Counsel of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lenderthe Lenders, as regarding the Borrower’s qualification and good standing in those material states in which it conducts business and (B) Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, PLLC, special counsel to such matters concerning the Loan Parties and the Loan Documents as Borrower, addressed to the Administrative Agent may request;and the Lenders, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(vib) The Administrative Agent shall have received a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017certificate, signed by a Responsible Officer the president, the chief executive officer, the chief financial officer or the treasurer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of certifying that (Ai) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 or any this Agreement and the other Loan DocumentCredit Documents are true and correct as of the Restatement Effective Date in all material respects (except to the extent such representation and warranty is qualified by materiality, or in which are contained in any document furnished at any time under or in connection herewith or therewithcase, such representation and warranty shall be true and correct in all material respects on and as of the date of such Loan, or except to the extent that such representations representation and warranties specifically refer to an earlier warranty is made as of a specific date, in which case they case, such representation and warranty shall be true and correct in all material respects as of such earlier date), both immediately before and except that for purposes after giving effect to the consummation of this Section 4.01the transactions contemplated hereby, the representations making of the initial Loans hereunder and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof, (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (iii) both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, no Material Adverse Change has occurred since December 31, 2010 and, to the best of his knowledge, there exists no event, condition or state of facts that could reasonably be expected to result in a Material Adverse Change, and (iv) all conditions to the initial extensions of credit hereunder set forth in this Section 4.1 and in Section 4.2 have been satisfied or waived as required hereunder.
(fc) The Administrative Agent shall have received a certificate of the secretary or an assistant secretary of each of the Borrower shall be and its Subsidiaries (other than Excluded Subsidiaries), in compliance form and substance satisfactory to the Administrative Agent, certifying (on i) that attached thereto is a Pro Forma Basis taking into account true and complete copy of the applicable Loanarticles or certificate of incorporation and all amendments thereto of the Borrower or such Subsidiary, as the case may be, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) with of its jurisdiction of organization, and that the financial covenants set forth in Section 7.11.
(g) There shall same has not have occurred any event or circumstance been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the Audited Financial Statements bylaws of the Borrower or such Subsidiary, as the case may be, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, and (iii) that has had attached thereto is a true and complete copy of resolutions adopted by the board of directors of the Borrower or could be reasonably expected such Subsidiary, as the case may be, authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to havewhich it is a party, either individually and as to the incumbency and genuineness of the signature of each officer of the Borrower or in such Subsidiary, as the aggregatecase may be, a Material Adverse Effectexecuting this Agreement or any of such other Credit Documents, and attaching all such copies of the documents described above.
(hd) The absence Administrative Agent shall have received a certificate as of any condition, circumstance, action, suit, investigation a recent date of the good standing or proceeding pending or, to the knowledge existence of each of the Borrower and/or Guarantorsand its Subsidiaries under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction.
(e) All legal, tax, accounting, business and other matters and all corporate or other proceedings incident to the transactions contemplated hereby shall be satisfactory in form and substance to the Administrative Agent; all approvals, permits and consents of any Governmental Authorities or other Persons required in connection with the execution and delivery of this Agreement and the other Credit Documents and the consummation of the transactions contemplated hereby and thereby shall have been obtained, without the imposition of conditions that are not acceptable to the Administrative Agent, and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in full force and effect and the Administrative Agent shall have received such copies thereof as it shall have requested; all applicable waiting periods shall have expired without any adverse action being taken by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened in or proposed before, and no order, injunction or decree shall have been entered by, any court or before other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or that is otherwise related to or arises out of, this Agreement, any arbitrator of the other Credit Documents or Governmental Authority that the consummation of the transactions contemplated hereby or thereby, or that, in the opinion of the Administrative Agent, could reasonably be expected to have a Material Adverse Effect.
(f) Since December 31, 2010, both immediately before and after giving effect to the consummation of the transactions contemplated by this Agreement, there shall not have occurred any Material Adverse Change or any event, condition or state of facts that could reasonably be expected to result in a Material Adverse Change.
(g) The Borrower shall have paid (i) to Xxxxx Fargo and Xxxxx Fargo Securities, the fees required under the Xxxxx Fargo Fee Letter to be paid to them on the Restatement Effective Date, in the amounts due and payable on the Restatement Effective Date, as required by the terms thereof, (ii) to Branch Banking and Trust Company and BB&T Capital Markets, the fees required under the BB&T Fee Letter to be paid to them on the Restatement Effective Date, in the amounts due and payable on the Restatement Effective Date, as required by the terms thereof, (iii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Xxxxx Fargo Fee Letter and (iv) all other fees and expenses of the Arrangers, the Administrative Agent and the Lenders required hereunder or under any other Credit Document to be paid on or prior to the Restatement Effective Date (including fees and expenses of counsel) in connection with this Agreement and the transactions contemplated hereby.
(h) The Administrative Agent shall have received the Projections as described in Section 5.11(b), which shall be in form and substance satisfactory to the Administrative Agent.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance evidence satisfactory to it that (i) concurrently with the requirements hereofmaking of the initial Loans hereunder, all principal, interest and other amounts outstanding with respect to the Existing Credit Agreement shall be repaid and satisfied in full and (ii) any letters of credit outstanding with respect to the Existing Credit Agreement (other than the Existing Letters of Credit) shall have been terminated or canceled.
(j) The Parent REIT and the Borrower Administrative Agent shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each received evidence in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality it that all of the provisions of the last paragraph requirements 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 6.6.
(k) The Administrative Agent shall have received notice all documentation and other information requested by the Administrative Agent that is required to satisfy applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(l) There shall be no liquidation or dissolution proceedings pending or threatened against the Borrower and the Borrower shall not be aware of any event or fact affecting or threatening the corporate existence of the Borrower or any of its Subsidiaries.
(m) The Administrative Agent shall have received an Account Designation Letter, together with written instructions from an Authorized Officer, including wire transfer information, directing the payment of the proceeds of the initial Loans to be made hereunder.
(n) The Administrative Agent and each Lender shall have received such Lender prior to other documents, certificates, opinions and instruments in connection with the proposed Closing Date specifying its objection theretotransactions contemplated hereby as it shall have reasonably requested.
Appears in 1 contract
Samples: Credit Agreement (Old Dominion Freight Line Inc/Va)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly 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 each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) a certificate of the Borrower, signed on its behalf by a Responsible Officer, as to its Organizational Documents and such certificates of resolutions or other action, incumbency certificates and/or other certificates of the Responsible Officers of each Loan Party the Borrower as the Administrative Agent may require 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 partyDocuments;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require request to evidence that each Loan Party the Borrower is duly organized or formed, and that each of the Loan Parties Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation the State of properties or the conduct of its business requires such qualificationPennsylvania;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx Wolf, Block, Sxxxxx and Xxxx Sxxxx-Xxxxx, LLP, counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as in form and substance satisfactory to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may requestand the Required Lenders;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consentsthe Borrower, licenses and approvals 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 on its behalf by a Responsible Officer of the Borrower Officer, certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2005 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xivii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may requirerequest.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date pursuant to the Fee Letter shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to 27 Credit Agreement 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 (proceedings; provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 1 contract
Samples: Credit Agreement (Philadelphia Consolidated Holding Corp)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, or electronic copies or telecopies (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 the Agreement, the date hereof, 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, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) executed counterparts of the Security Agreement, duly executed by the Borrower, together with:
(A) copies of (1) Uniform Commercial Code financing statements in proper form for filing with the office of the District of Columbia Recorder of Deeds and the California Secretary of State and (2) Form No. 9 in proper form for filing with the Registrar of Companies of Bermuda, each covering the Collateral described in the Security Agreement,
(B) results of lien searches for filings in the jurisdictions referred to in Section 4.01(a)(iii)(A) that name the Borrower as debtor, and
(C) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and to ensure the first-priority nature of the Liens (subject only to Permitted Collateral Liens) created under the Security Agreement has been taken (including receipt of duly executed lien releases and UCC-3 termination statements relating to the Liens securing obligations under the Revolving Credit Agreement and the other Segregated Pool Collateral Debt, as applicable, with respect to the Contributed Containers for such certificates Borrowing date);
(iv) certified copies of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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;
(ivv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, formed and that each of the Loan Parties is validly existing, in good standing in Bermuda, including certificates of compliance issued by the Registrar of Companies of the Islands of Bermuda for each Loan Party, dated a date close to the date of this Agreement, stating that each Loan Party is duly incorporated and qualified to engage in business in each jurisdiction where its ownership, lease or operation good standing under the Companies Xxx 0000 of properties or the conduct Islands of its business requires such qualificationBermuda;
(vvi) a favorable opinion opinions of (1) Xxxxxxxx Xxxxxx & Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, (2) Xxxxxxx Xxxx & Xxxxxxx LLP, special Bermuda counsel to the Loan Parties, and (3) appropriate local counsel to the Loan Parties, in each case 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 request;
(vivii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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;
(viiviii) a certificate signed by a Responsible Officer of the Borrower and the Guarantor certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viiiix) a duly completed Compliance Certificate as of the last day of the respective fiscal quarter of the Borrower and the Guarantor ended on June 30March 31, 20172015, signed by a Responsible Officer Officers of the BorrowerBorrower and the Guarantor;
(ixx) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and obtained, is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form effect and substance satisfactory to contains endorsements naming the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each on behalf of the other Lenders, as a joint assured and/or co-loss payee, as the case may be, under such insurance;
(xi) evidence that all filings, recordations and searches necessary or desirable to perfect the Lien on any property granted to or held by the Administrative Agent under any Loan PartiesDocument shall have been completed, and that all related filing and recording fees and taxes shall have been duly paid;
(Cxii) a Borrowing Base Certificate relating to the Consolidated Parties on a consolidated basisinitial Borrowing; and
(xixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(bi) Any All fees required to be paid hereunder or under to the Fee Letters Administrative Agent and the Arranger on or before the Closing Date shall have been paid and (provided such ii) all fees may required to be paid from to the proceeds of such initial Loan)Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties Administrative Agent shall have completed a due diligence investigation of the Guarantor, the Borrower and each other Loan Party contained their respective Subsidiaries in Section 5 or any other Loan Documentscope, or which are contained in any document furnished at any time under or in connection herewith or therewithand with results, satisfactory to the Administrative Agent and shall be true have been given such access to the management, records, books of account, contracts and correct in all material respects on and as properties of the date Guarantor, the Borrower and their respective Subsidiaries and shall have received such financial, business and other information regarding each of such Loan, except to the extent that such representations foregoing persons and warranties specifically refer to an earlier date, in which case businesses as they shall be true have requested, including information as to possible contingent liabilities, tax matters, collective bargaining agreements and correct in all material respects as of such earlier date, and except that for purposes of this Section 4.01other arrangements with employees, the representations annual (or other audited) financial statements of the Guarantor, the Borrower and warranties contained in subsections (a) their respective Subsidiaries for the fiscal years ended 2012, 2013 and (b) 2014, interim financial statements of Section 5.05 shall be deemed to refer to the Guarantor, the Borrower and their respective Subsidiaries dated the end of the most recent fiscal quarter for which financial statements furnished pursuant to clauses are available (a) and (b)or, respectivelyin the event the Administrative Agent’s due diligence review reveals material changes since such financial statements, as of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application a later date within 45 days of the proceeds thereof.
(f) The Closing Date); and no changes or developments shall have occurred, and no new or additional information, shall have been received or discovered by the Administrative Agent or the Lenders regarding the Guarantor, the Borrower shall be in compliance (on a Pro Forma Basis taking into account or their respective Subsidiaries or the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any event or circumstance since the date of the Audited Financial Statements transactions contemplated hereby after March 31, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, and nothing shall have come to the attention of the Administrative Agent or the Lenders to lead them to believe that the transactions contemplated hereby will have a Material Adverse Effect.
(he) The absence of any condition, circumstance, No action, suit, investigation or proceeding is pending or, to the knowledge of the Borrower and/or GuarantorsGuarantor or the Borrower, threatened in any court or before any arbitrator or Governmental Authority governmental authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 makes any Loan pursuant to Section 2.01 shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder by this Section 4.01 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 1 contract
Samples: Revolving Credit Agreement (Textainer Group Holdings LTD)
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings initial Borrowing hereunder, and the obligation of the Issuing Lender to issue Letters of Credit hereunder on the Initial Closing Date of its Loans hereunder Date, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies the Initial Closing Date (followed promptly by originals) unless otherwise specified) and, each properly executed by a Responsible Officer of except for the signing Loan Party, each dated the Closing Date (orNotes, in the case of certificates of governmental officials, a recent date before the Closing Date) and sufficient copies for each in form and substance satisfactory to the Administrative Agent and each of the LendersLender:
(i) executed counterparts A Revolving Note for each Lender that is a party hereto as of this Agreementthe Initial Closing Date, sufficient in number the amount of such Lender's Commitment and a Swingline Note for distribution to the Administrative AgentSwingline Lender, in the amount of the Swingline Commitment, each Lender duly completed in accordance with the relevant provisions of SECTION 2.4 and executed by the Borrower;
(ii) a Note the Subsidiary Guaranty, duly completed and executed by each Subsidiary Guarantor as shown on SCHEDULE 5.7 to the Borrower in favor of each Lender requesting a NoteInitial Agreement;
(iii) such certificates the favorable opinions of resolutions or other actionMcGuire, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identityWoods, 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organizationBattle & Xxxxxx, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, special counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties Lenders and the Loan Documents as the Administrative Agent may request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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, form attached hereto as EXHIBIT F. s (b) The Agent shall have received a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017certificate, signed by a Responsible Officer the president, the chief executive officer or the chief financial officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of certifying that (Ai) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 or any this Agreement and the other Loan Document, or which Credit Documents are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Loan, 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 datethe Initial Closing Date, both immediately before and except that for purposes after giving effect to the consummation of this Section 4.01the transactions contemplated hereby, the representations making of the initial Loans hereunder and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
, (fii) The Borrower shall be in compliance (on a Pro Forma Basis taking into account no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any event or circumstance since the date consummation of the Audited Financial Statements that has had or could be reasonably expected transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (iii) both immediately before and after giving effect to havethe consummation of the transactions contemplated hereby, either individually or in the aggregatemaking of the initial Loans hereunder and the application of the proceeds thereof, a no Material Adverse Effect.
(h) The absence Change has occurred since December 31, 1999, and there exists no event, condition or state of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority facts that could Execution reasonably be expected to have result in a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC FacilityChange, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (iiiv) a conforming amendment all conditions to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality initial extensions of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified credit hereunder set forth in this Section 4.01, each Lender that has signed this Agreement shall be deemed to and in SECTION 4.3 have consented to, approved been satisfied or accepted or to be satisfied with, each document or other matter waived as 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 theretohereunder.
Appears in 1 contract
Samples: Credit Agreement (St Joe Co)
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings initial Borrowing hereunder, and the obligation of the Issuing Lender to issue Letters of Credit hereunder on the Closing Date of its Loans hereunder Date, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orunless otherwise specified) and, except for the Notes and any certificates or instruments required to be delivered under the OCA Pledge Agreement, in sufficient copies for each Lender:
(i) A Dollar Note for each Lender that is a party hereto as of the Closing Date, in the case amount of such Lender's Commitment, and a Foreign Currency Note for each such Lender, in the amount of such Lender's ratable share of the Foreign Currency Sublimit, each duly completed in accordance with the relevant provisions of SECTION 2.4 and executed by OCA;
(ii) the Subsidiary Guaranty, duly completed and executed by each Subsidiary of OCA (other than any corporation the capital stock of which is or has been acquired by OCA or any of its Subsidiaries from individuals who enter into a Service Agreement in the ordinary course of OCA's or its Subsidiaries' acquisition program, the assets of which are transferred to another Subsidiary of OCA that is a Subsidiary Guarantor, and which does not conduct any active trade or business (collectively, "Inactive Subsidiaries")), and an Intercompany Note, duly completed and executed by each such Subsidiary;
(iii) the OCA Pledge Agreement, duly executed by OCA and each Subsidiary of OCA that owns Capital Stock of another Subsidiary other than an Inactive Subsidiary (provided that the Capital Stock of Inactive Subsidiaries shall not be required to be pledged), together with any certificates evidencing the Capital Stock being pledged thereunder as of governmental officials, a recent date before the Closing DateDate and undated assignments separate from certificate for any such certificate, duly executed in blank, and any promissory notes being pledged thereunder, duly endorsed in blank; and
(iv) the favorable opinion of Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, PLLC, special counsel to OCA and each its Subsidiaries, in substantially the form of EXHIBIT I, addressed to the Agent and the Lenders and addressing such other matters as the Agent or any Lender may reasonably request.
(b) The Agent shall have received a certificate, signed by the president, the chief executive officer, the co-chief executive officer or the chief financial officer of OCA, in form and substance satisfactory to the Administrative Agent and each of the Lenders:
Agent, certifying that (i) executed counterparts all representations and warranties of this Agreement, sufficient OCA contained in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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 Credit Documents are true and correct as of the Closing Date, both immediately before and after giving effect to which such Loan Party the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (iii) both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, no Material Adverse Change has occurred since December 31, 1997, and there exists no event, condition or state of facts that could reasonably be expected to result in a party;
Material Adverse Change, and (iv) copies all conditions to the initial extensions of credit hereunder set forth in this Section and in SECTION 4.2 have been satisfied or waived as required hereunder.
(c) The Agent shall have received a certificate of the Organization Documents secretary or an assistant secretary of each Loan Party certified of OCA and its Subsidiaries (other than Inactive Subsidiaries), in form and substance satisfactory to be the Agent, certifying (i) that attached thereto is a true and complete copy of the articles or certificate of incorporation and all amendments thereto of OCA or such Subsidiary, as the case may be, certified as of a recent date by the appropriate Secretary of State (or comparable Governmental Authority Authority) of the state or other its jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease bylaws of OCA or operation of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each LenderSubsidiary, as the case may be, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such matters concerning certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the Loan Parties and the Loan Documents board of directors of OCA or such Subsidiary, as the Administrative Agent case may request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consentsbe, licenses and approvals required in connection with authorizing the execution, delivery and performance by such Loan Party of this Agreement and the validity against such Loan Party of the Loan other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of OCA or such consentsSubsidiary, licenses as the case may be, executing this Agreement or any of such other Credit Documents, and approvals attaching all such copies of the documents described above.
(d) The Agent shall have received (i) a certificate as of a recent date of the good standing of each of OCA and its Subsidiaries (other than Inactive Subsidiaries) under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction, (ii) a certificate as of a recent date of the qualification of each of OCA and its Subsidiaries to conduct business as a foreign corporation in the jurisdiction in which it primarily conducts business as of the Closing Date, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction, and (iii) to the extent generally provided, a tax clearance, tax good standing or similar certificate or letter as to each of OCA and its Subsidiaries, from the Department of Revenue (or comparable Governmental Authority) in each applicable jurisdiction under (i) and (ii) above.
(e) All legal matters, documentation, and corporate or other proceedings incident to the transactions contemplated hereby shall be satisfactory in form and substance to the Agent in its reasonable discretion; all approvals, permits and consents of any Governmental Authorities or other Persons required in connection with the execution and delivery of this Agreement and the other Credit Documents and the consummation of the transactions contemplated hereby and thereby shall have been obtained, without the imposition of conditions that are not acceptable to the Agent, and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in full force and effecteffect and the Agent shall have received such copies thereof as it shall have requested; all applicable waiting periods shall have expired without any adverse action being taken by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before, and no order, injunction or decree shall have been entered by, any court or other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or (B) stating that no such consentsis otherwise related to or arises out of, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d)this Agreement, (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each any of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Credit Documents or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder consummation of the transactions contemplated hereby or under thereby, or that, in the Fee Letters on or before opinion of the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(if) The Administrative Agent shall have received certified reports from an independent search service satisfactory to it listing any judgment or tax lien filing or Uniform Commercial Code financing statement that names OCA or any Subsidiary Guarantor as debtor in any of such jurisdictions as may be designated by the Agent, and the results thereof shall be satisfactory to the Agent.
(g) The Agent shall have received evidence in form and substance satisfactory to it that all filings, recordings, registrations and other actions necessary or, in the reasonable opinion of the Agent, desirable to perfect the Liens created by the OCA Pledge Agreement shall have been completed, or arrangements satisfactory to the Agent for the completion thereof shall have been made.
(h) Since December 31, 1997, both immediately before and after giving effect to the consummation of the transactions contemplated by this Agreement, there shall not have occurred any Material Adverse Change or any event, condition or state of facts that could reasonably be expected to result in a Committed Loan Notice Material Adverse Change.
(i) OCA shall have paid (i) to the Agent, the fee described in accordance paragraph (2) of the Fee Letter, (ii) to the Agent, the initial payment of the annual administrative fee described on page 2 of the Fee Letter, and (iii) all other fees and expenses of the Agent and the Lenders required hereunder or under any other Credit Document to be paid on or prior to the Closing Date (including the reasonable fees and expenses of counsel) in connection with this Agreement and the requirements hereoftransactions contemplated hereby.
(j) The Parent REIT Agent shall have received a Financial Condition Certificate, together with the Projections as described in SECTION 5.11(B), all of which shall be in form and substance satisfactory to the Agent.
(k) The Agent shall have received a Covenant Compliance Worksheet, duly completed and certified by the chief financial officer of OCA and in form and substance satisfactory to the Agent, demonstrating OCA's compliance with the financial covenants set forth in SECTIONS 7.1 through 7.3, determined on a pro forma basis as of June 30, 1998 after giving effect to the making of the initial Loans hereunder and the Borrower consummation of the transactions contemplated hereby.
(l) The Agent shall have entered into received evidence satisfactory to it that (i) concurrently with the PNC Facilitymaking of the initial Loans hereunder, (x) all principal, interest and other amounts outstanding with respect to any Indebtedness of OCA or any Subsidiary (including under OCA's Revolving Credit Agreement with First Union dated as of May 1, 1998) not expressly permitted under SECTION 8.2 to remain outstanding on and after the Bank Closing Date or otherwise to be terminated (the "Terminating Indebtedness") shall be repaid and satisfied in full, (y) all commitments to extend credit under the agreements and instruments relating thereto shall be terminated, and (z) any Liens securing any Terminating Indebtedness shall be released and any related filings terminated of America Facilityrecord (or arrangements satisfactory to the Agent made therefor), the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment any letters of credit outstanding with respect to Terminating Indebtedness shall have been terminated or canceled (or, to the Senior Notesextent that First Union is the issuer thereof, each in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality such letters 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 credit 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 issued and outstanding as Letters of Credit hereunder).
(m) The Agent shall have received notice an Account Designation Letter, together with written instructions from an Authorized Officer of OCA, including wire transfer information, directing the payment of the proceeds of the initial Loans to be made hereunder.
(n) The Agent and each Lender shall have received such Lender prior to other documents, certificates, opinions and instruments in connection with the proposed Closing Date specifying its objection theretotransactions contemplated hereby as it shall have reasonably requested.
Appears in 1 contract
Samples: Credit Agreement (Orthodontic Centers of America Inc /De/)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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, the Israeli Guaranty, and the U.S. Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties Party is validly existing, in good standing (with respect to jurisdictions in which the concept of good standing exists), 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 do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLPXxxxxxxx, U.S. counsel to the Loan Parties, Meitar Liquornik Xxxx Xxxxxx Tal, Israeli counsel to the Loan Parties, and other appropriate corporate or local counsel to the Loan Parties, each 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 request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all U.S., Israeli and other consents, licenses and approvals 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, 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) have been satisfied, and (B) that that, to the knowledge of such Responsible Officer, 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;and
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the Swing Line Lender or the Required Lenders reasonably may requirerequire and as requested prior to the Closing Date.
(b) The Administrative Agent and each Lender shall have received (i) applicable permits and/or approvals from the Governor of the Bank of Israel to use the word “bank” in the name of the Administrative Agent or such Lender, as applicable, (ii) executed Approval for Consortium Arrangement letters from each of the Borrower and the Israeli Guarantors and (iii) all additional required licenses, permits and consents from the applicable regulatory authority in Israel to enter into this Agreement, consummate the transactions described herein, and perform their obligations hereunder as requested prior to the Closing Date.
(c) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(cd) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing DateDate and payable under Section 10.04(a), 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this payable under Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b10.04(a), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 (Stratasys Ltd.)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly 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 each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers a secretary or assistant secretary of each Loan Party 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 is a partyDocuments;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Borrower is duly organized or formedand in good standing in Oklahoma, and that each of the Loan Parties Borrower is validly 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 do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLPXxxxx & Xxxxxxx, counsel to the Loan PartiesBorrower, 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 request;
(vi) a favorable opinion of Xxxxx Lord Bissell & Liddell LLP, special New York counsel to the Borrower, addressed to the Administrative Agent and each Lender;
(vii) a certificate of a Responsible Officer of each Loan Party the Borrower either (A) attaching copies of all consents, licenses and approvals 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 partyDocuments, 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f4.02(a) 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) a Material Adverse Effectmaterial adverse change in, or a material adverse effect upon, the operations, business, properties, assets, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the ability of the Borrower to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basiscurrent Debt Ratings; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 1 contract
Samples: 364 Day Revolving Credit Agreement (Oneok Inc /New/)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing 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 or telecopies (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 (A) this Agreement, (B) the Security Agreement, (C) the Company Guaranty and (D) the Subsidiary Guaranty, in each case, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) a Note executed by the Borrower Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties Party is validly existing, in good standing and qualified to engage in business in the respective jurisdictions specified in Schedule 4.01, which includes 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 Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx Xxx Xxxxx & Xxxxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent, the Revolving Administrative Agent and each Lender, as to the matters set forth in Exhibit L (which shall include matters of Delaware, North Carolina, South Carolina and Federal Law) and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(vi) a favorable opinion of local counsel to the Loan Parties in Florida, Texas, California, Alabama, and Tennessee, addressed to the Administrative Agent and each Lender in form and substance satisfactory to the Administrative Agent;
(vii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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;
(viiviii) a certificate signed by a Responsible Officer of the Borrower Company certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viiiix) a certificate signed by the chief executive officer, chief financial officer, treasurer or chief accounting officer of each Loan Party certifying that each Loan Party is Solvent, after giving effect to this Agreement and the other Loan Documents and the Indebtedness pursuant hereto and thereto;
(x) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower Company ended on June September 30, 20172009, signed by a Responsible Officer of the BorrowerCompany; provided that, Indebtedness outstanding as of September 30, 2009 under the 6.00% Senior Secured Convertible Notes issued by the Company pursuant to the Indenture dated as of May 7, 2009 between the Company, the guarantors set forth therein and U.S. Bank National Association, as Trustee, may be excluded from all calculations thereunder;
(ixxi) a duly completed Used Vehicle Borrowing Base Certificate dated as of the Closing Date certifying as to the Used Vehicle Borrowing Base as of December 31, 2009, signed by a Responsible Officer of the Company;
(xii) a copy of (A) each standard form of Franchise Agreement for each vehicle manufacturer or distributor and (B) each executed Framework Agreement;
(xiii) duly executed consents and waivers required pursuant to any Franchise Agreement or Framework Agreement;
(xiv) executed counterparts of the Master Intercreditor Agreement, including all Silo Lender exhibits thereto;
(xv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, including endorsements naming the Revolving Administrative Agent (on behalf of the Secured Parties) as an additional insured and loss payee, as the case may be, on all such insurance policies maintained with respect to properties of the Company or any Loan Party constituting part of the Collateral;
(xxvi) evidence that the Company and the New Vehicle Borrowers (as defined in the Existing Credit Agreement) have terminated the commitments under the New Vehicle Floorplan Facility and the Used Vehicle Floorplan Facility (each as defined in the Existing Credit Agreement) and all loans thereunder have been repaid in the amounts set forth in the floorplan paydown letter dated on or about the date hereof between the Administrative Agent and the Company (the “Existing Floorplan Paydown Letter”);
(xvii) consolidating balance sheets (including a separate line item for Eligible Used Vehicle Inventory) for the Company and each Subsidiary as at the end of September 30, 2009, and the related consolidating statements of income or operations, all in reasonable detail prepared by management of the Company or such Subsidiary, in each case with subtotals for (a) each Subsidiary, (b) all New Vehicle Borrowers (excluding the results of any Dual Subsidiaries) and (c) all Silo Subsidiaries grouped by each Silo Lender, and in each case prior to intercompany eliminations;
(xviii) forecasts (including assumptions) prepared by the management of the Company of consolidated balance sheets, income statements and cash flow statements of the Company and its Subsidiaries in form and substance reasonably satisfactory to the Administrative Agent for each of the first three years following the Closing Date;
(xix) if required by the Administrative Agent or the Revolving Administrative Agent, in their respective sole discretion, satisfactory results of audits of the Collateral, provided that, whether or not any such audit is performed, the Administrative Agent and the New Vehicle Swing Line Lender shall be entitled to rely on information provided by any existing lender of the Company or its Subsidiaries as to any Vehicles and existing new vehicle facilities being refinanced or paid down on the Closing Date;
(xx) UCC financing statements or amendments to previously filed UCC financing statements for filing in all places required by applicable law to perfect the Liens of the Revolving Administrative Agent for the benefit of the Secured Parties under the Security Instruments as a valid and perfected Lien (with the priority described therein) as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be necessary under applicable law to perfect the Liens of the Revolving Administrative Agent for the benefit of the Secured Parties under the Security Instruments as a valid and perfected Lien in and to such other Collateral as the Administrative Agent may require;
(xxi) UCC search results with respect to the Borrowers showing only Liens acceptable to the Administrative Agent (or pursuant to which arrangements satisfactory to the Administrative Agent shall have been made to remove any unacceptable Liens promptly after the Closing Date);
(xxii) such duly executed Landlord Waivers for locations of the Borrowers not already in effect pursuant to the Existing Credit Agreement, as may be requested by the Administrative Agent in its sole discretion;
(xxiii) a certificate executed signed by a Responsible Officer of the Borrower Company certifying as to the status of the Closing Date, in form Unrestricted Subsidiaries;
(xxiv) evidence that all floorplan financing arrangements among Chrysler Financial Services Americas LLC and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, any Subsidiary have been repaid and (C) the Consolidated Parties on a consolidated basisterminated and all Liens securing obligations thereunder have been released; and
(xixxv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the New Vehicle Swing Line Lender, the Used Vehicle Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower Company shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower Company and the Administrative Agent).
(d) The representations and warranties of Revolving Credit Facility shall have been consummated substantially simultaneously with the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes consummation of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative AgentAgreement. 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 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 Initial Borrowing. The effectiveness of this Agreement and the obligation of each Lender to advance the Borrowings make its initial Loans hereunder on the Closing Date of its Loans hereunder is are 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 telecopies or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyOfficer, 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, sufficient in number for distribution to executed and delivered by the Administrative Agent, the Borrower, the Guarantor and each Lender and the Borrowerlisted on Schedule 2.01;
(ii) 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, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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 partyDocuments;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Credit Party is duly organized or formed, and that each of the Loan Parties Credit Party is validly existing, 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 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;
(vA) a favorable opinion opinions of Xxxxxxxx Xxxxxx Xxxxxxxx and Dxxxx Xxxx & Wxxxxxxx LLP, counsel to the Loan Credit Parties, addressed to the Administrative Agent and each LenderLender and (B) favorable opinions of in-house counsel to Ventas, as addressed to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may requestand each Lender;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (eSection 4.02(a) and (fb) 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 Effectcurrent Debt Ratings; and (C) a calculation of the Consolidated Leverage Ratio that, as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as date of the Closing Date, the Borrower is in form pro forma compliance with the financial covenants contained in Section 7.10 (and substance attaching the computations in reasonable detail satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis); and
(xivii) such evidence that, substantially concurrently with the Closing Date, all Indebtedness and other assurancesobligations under or in connection with the Existing Term Loan Agreement (including without limitation all unpaid principal, certificatesinterest, documentsfees, consents expenses and other amounts owing thereunder or opinions as the Administrative Agent or the Required Lenders reasonably may requirein connection therewith) will be repaid in full and all commitments to lend thereunder will be terminated.
(b) Any fees required to be paid hereunder or under by the Fee Letters Borrower on or before prior to the Closing Date pursuant to the Loan Documents and all expenses required to be reimbursed by the Borrower on or prior to the Closing Date pursuant to the Loan Documents shall have been paid paid, provided that invoices (provided such fees which invoice may be paid from in summary form) for such expenses have been presented to the proceeds Borrower a reasonable period of such initial Loan).
time (cand in any event not less than two (2) Unless Business Days) prior to the Closing Date (including, unless waived by the Administrative Agent, the Borrower shall have paid all reasonable reasonable, documented, out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent)).
(c) Upon the reasonable request of any Lender made at least ten (10) days prior to the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” rules and regulations and Anti-Money Laundering Law, including the Patriot Act, in each case at least five (5) days prior to the Closing Date.
(d) The representations and warranties of To the extent the Borrower or Ventas qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver to each Lender that so requests, in a form reasonably acceptable to such Lender, a Beneficial Ownership Certification in relation to the Borrower and each other Loan Party contained in Section 5 or any other Loan Document, or which are contained in any document furnished Ventas at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Loan, except least five (5) days prior 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative AgentClosing 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, (i) this Agreement and each other document to which it is a party or which it has reviewed or (ii) any 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. The Lenders that are also party to the Existing Term Loan Agreement, comprising the “Required Lenders” as defined therein, hereby waive any requirement of notice of prepayment pursuant to Section 2.06(a) of the Existing Term Loan Agreement and waive any additional notice or other requirements that might apply to such prepayment or termination of commitments to the extent necessary to give effect to the foregoing.
Appears in 1 contract
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial 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 telecopies e-mail (in a .pdf format) or facsimiles (followed promptly by originals) unless otherwise specified, each of which documents to be signed by any Loan Party shall be properly executed by a Responsible Officer of the such signing Loan Party, each Party and 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 satisfactory to the Administrative Agent and each of the Lenders:
(i) an Appraisal for each Collateral Property;
(ii) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(iiiii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iiiiv) with respect to each Collateral Property:
(A) an executed, acknowledged and/or sworn to (as required) Mortgage, in proper form for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on such Collateral Property, all Improvements thereon and all other property described therein in favor of the Administrative Agent for the benefit of the Secured Parties, and evidence that funds have been sent to the Title Insurer for payment of all filing, fees and Other Taxes;
(B) an executed, acknowledged and/or sworn to (as required) Assignment of Leases, in proper form for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable, and evidence that funds have been sent to the Title Insurer for payment of all filing fees and Other Taxes;
(C) an executed General Assignment;
(D) an executed Property Management Subordination Agreement;
(E) an executed Environmental Indemnity Agreement;
(F) the Title Insurer shall be unconditionally obligated to issue fully paid American Land Title Association Lender’s title insurance policy or policies (each a “Mortgage Policy”) issued by the Title Insurer, with endorsements and in amounts acceptable to the Administrative Agent, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring without exclusion or exception for creditors’ rights (to the extent such coverage is available in each applicable jurisdiction) that each Mortgage constitutes a valid first priority and subsisting Lien on the applicable Collateral Property and all Improvements thereon, free and clear of all defects and encumbrances (including mechanics’ and materialmen’s Liens, contracts, and memoranda thereof, for construction, design, surveying, or any other service and notices of commencement, lis pendens and judgments), excepting only Liens created by the Loan Documents, Liens for Real Estate Taxes not yet due and payable, rights of Lessees under Leases as tenants only, and other Permitted Encumbrances that are acceptable to the Administrative Agent, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and, if available in each application jurisdiction, for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable;
(G) an American Land Title Association/American Congress on Surveying and Mapping form survey by a land surveyor duly registered and licensed in the State in which the property described in such survey is located, for which all necessary fees (where applicable) have been paid, certified to the Administrative Agent and the Title Insurer and otherwise complying with Exhibit G to the extent required by the Administrative Agent (or, if acceptable to Administrative Agent, a copy of an existing survey for such Collateral Property with a certificate from the surveyor who prepared same in favor of Administrative Agent and Title Insurer and otherwise in form and content acceptable to Administrative Agent) (a “Survey”);
(H) if and to the extent any portion of the improvements on such Collateral Property is, under the FDPA, in a Special Flood Hazard Area, within a Flood Zone designated A or V in a participating community, a flood insurance policy in an amount required by Administrative Agent, but in no event less than the amount sufficient to meet the requirements of applicable Law and the FDPA, as such requirements may from time to time be in effect, or evidence satisfactory to Administrative Agent that none of the Collateral Property is located in such a Flood Zone;
(I) evidence that (1) such Collateral Property abuts and has fully adequate direct and free access to one or more public streets, dedicated to public use, fully installed and accepted by the appropriate Governmental Authority, that all fees, costs and expenses of the installation and acceptance thereof have been paid in full, and that there are no restrictions on the use and enjoyment of such streets which would adversely affect such Collateral Property; (2) no title exception affecting each Collateral Property prohibits or limits the use for which such Collateral Property is intended or is violated (including, if required by the Administrative Agent, estoppel certificates from the parties thereto); and (3) evidence of compliance by the Borrower, the applicable Subsidiary Guarantor and the Collateral Property, and any proposed construction, use and occupancy of the Improvements, with such Laws as the Administrative Agent may request, including all laws regarding access and facilities for handicapped or disabled persons including, to the extent applicable, The Federal Architectural Barriers Act (42 U.S.C. § 4151 et seq.), The Fair Housing Amendments Act of 1988 (42 U.S.C. § 3601 et seq.), The Americans With Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), The Rehabilitation Act of 1973 (29 U.S.C. § 794), and any applicable state requirements;
(J) a Property Condition Report;
(K) a Baseline Environmental Report;
(L) true, complete and correct copies of the Property Management Agreement and all other Material Contracts affecting such Collateral Property;
(M) copies of permanent and unconditional certificates of occupancy permitting the fully functioning operation and occupancy of such Collateral Property and of all other material Governmental Approvals for such Collateral Property, together with a Zoning Report indicating that such Collateral Property complies with all zoning, building code, fire code, subdivision and platting requirements and does not rely on any other property for such compliance;
(N) evidence that such Collateral Property is a separate tax lot or lots with separate assessment or assessments of such Collateral Property and Improvements, independent of any other Property or improvements and that such Collateral Property is a separate legally subdivided parcel;
(O) such other reports, audits or certifications as the Administrative Agent or any Lender may reasonably request with respect to such Collateral Property;
(v) a certificate or certificates of a reporting service acceptable to Administrative Agent, reflecting the results of searches made not earlier than thirty (30) days prior to the date of this Agreement, (1) of the central and local Uniform Commercial Code records of all jurisdictions that the Administrative Agent deems necessary or desirable, listing all effective financing statements filed in such jurisdictions that name any the applicable Subsidiary Guarantor as a debtor, together with copies of such financing statements; and (2) of litigation, judgment and tax lien records in such locations as the Administrative Agent requires, showing no outstanding judgment or tax lien against the applicable Subsidiary Guarantor and no litigations by or against the applicable Subsidiary Guarantor that could reasonably be expected to have a Material Adverse Effect or a Material Adverse Property Effect;
(vi) evidence that prior to and as of the time each Mortgage was filed for record no activity or circumstance was visible any Collateral Property which would constitute inception of a mechanic’s or materialman’s lien against such Collateral Property;
(vii) evidence that all proper financing statements have been or contemporaneously therewith will be duly filed under the UCC of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Collateral Documents covering the Collateral described therein and all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect first priority valid and subsisting Liens on the Collateral have been taken (including receipt of duly executed payoff letters and UCC-3 termination statements, if any);
(viii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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;
(ivix) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties Party is validly 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;
(vx) a favorable opinion of Hunton & Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx 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 Required Lenders may reasonably request;
(vixi) a favorable opinion of Hunton & Xxxxxxxx LLP, local counsel to the Loan Parties in Texas, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties, the Loan Documents and the applicable Collateral Properties as the Required Lenders may reasonably request;
(xii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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;
(viixiii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) have been satisfied, satisfied (or waived) and (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 or a Material Adverse Property Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viiixiv) a (A) business plan and budget of the REIT and its Subsidiaries on a consolidated basis, including forecasts prepared by management of the REIT of consolidated balance sheets and statements of income or operations and cash flows of the REIT and its Subsidiaries on a monthly basis for the first year following the Closing Date and (B) management-prepared capital and operating budget for each Collateral Property on a monthly basis for the first year following the Closing Date;
(xv) the originals of each insurance policy (or to the extent permitted by Administrative Agent, a copy of the original policy and such evidence of insurance acceptable to Administrative Agent) required pursuant to Section 6.08(b), with all premiums fully paid current, together with the certificates of insurance and endorsements, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured, mortgagee and/or loss payee as required pursuant to Section 6.08(b);
(xvi) a Solvency Certificate from the REIT certifying that each Loan Party is Solvent after giving effect to the Loans to occur on the Closing Date and taking into account rights of contribution and subrogation;
(xvii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower REIT most recently ended prior to the Closing Date, giving pro forma effect to the Loans to be made on June 30, 2017the Closing Date (as if such Loans were made on the last day of such fiscal quarter), signed by a Responsible Officer of the BorrowerREIT;
(ixxviii) the financial statements referenced in Section 5.05(b);
(xix) intentionally omitted;
(xx) evidence that all insurance required to be maintained pursuant to the existing Indebtedness of each Loan Documents Party that is not permitted under this Agreement has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of been, or concurrently with the Closing DateDate is being, in form terminated and substance satisfactory to all Liens securing such obligations have been, or concurrently with the Administrative AgentClosing Date are being, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basisreleased; and
(xixxi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders any Lender reasonably may require.
(bi) Any All fees required to be paid hereunder or under to the Fee Letters Administrative Agent and the Arrangers on or before the Closing Date shall have been paid and (provided such ii) all fees may required to be paid from to the proceeds of such initial Loan)Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced (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 Borrower and the Administrative Agent).
(d) The representations and warranties Lenders shall have completed a due diligence investigation of the Borrower REIT and each other Loan Party contained its Subsidiaries in Section 5 or any other Loan Documentscope, or which are contained in any document furnished at any time under or in connection herewith or therewithand with results, satisfactory to the Lenders, and shall be true have been given such access to the management, records, books of account, contracts and correct in all material respects on and as properties of the date REIT and its Subsidiaries and shall have received such financial, business and other information regarding each of such Loan, except to the extent that such representations foregoing Persons and warranties specifically refer to an earlier date, in which case businesses as they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01have requested.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred since December 31, 2012 any event or circumstance since the date of the Audited Financial Statements condition that has had or could reasonably be reasonably expected to haveexpected, either individually or in the aggregate, to have a Material Adverse Effect or a Material Adverse Property Effect.
(hf) The absence of any conditionThere shall be no actions, circumstancesuits, actioninvestigations, suitproceedings, investigation claims or proceeding disputes pending or, to the knowledge of the Borrower and/or Guarantorsany Loan Party, threatened in any court writing, at law, in equity, in arbitration or before any arbitrator Governmental Authority, by or Governmental Authority against any of the Loan Parties that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 (Landmark Apartment Trust of America, Inc.)
Conditions of Initial Borrowing. The obligation of each Lender to advance make the Borrowings on the Closing Date of its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (as applicable), 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 AgreementAgreement and the Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note Term Notes executed by the Borrower in favor of each Lender requesting a NoteTerm Notes;
(iii) such certificates The certificate of resolutions incorporation (or other action, incumbency certificates and/or other certificates of Responsible Officers comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may require evidencing request to establish that such Person is duly organized and existing under the identitylaws of such jurisdiction), authority and capacity of each Responsible Officer together with an English translation 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(if appropriate);
(iv) copies To the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) A certificate of the Organization Documents secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certified to be true and complete as of certifying (A) that attached thereto is a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as copy of the Closing Date by-laws (or comparable document) of such Person as in effect (or, if any such Person is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (B) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Person (or other documents comparable enabling action) and certifications continuing in effect, which (1) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (2) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (C) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) A certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate);
(vii) Favorable written opinions from each of the following counsel for the Borrower, the Subsidiary Guarantors and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably require request and otherwise in form and substance satisfactory to evidence that each Loan Party is duly organized or formedthe Administrative Agent:
(A) Xxxxxx, Xxxxxx-Xxxxxxx, Colt & Mosle LLP, U.S. counsel for FIL and that each of the Loan Parties is validly 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 qualificationSubsidiaries;
(vB) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx Xxx & Partners, Malaysian (including Labuan) counsel for FIL and Xxxx LLPits Subsidiaries;
(C) Xxxxx & Xxxxxxxx, Singapore counsel for FIL and its Subsidiaries;
(D) Lexence N.V., Dutch counsel for FIL and its Subsidiaries;
(E) C & A Law, Mauritius counsel for FIL and its Subsidiaries;
(F) Wolf Xxxxxx, Hungarian counsel for FIL and its Subsidiaries; and
(G) Such other local counsel to the Loan Parties, addressed to the Administrative Agent FIL and each Lender, as to such matters concerning the Loan Parties and the Loan Documents its Subsidiaries as the Administrative Agent may request;reasonably request with respect to Subsidiary Guarantors.
(viviii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 stating 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;
(viiix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements March 31, 2013 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation the current Debt Ratings, and (D) pro forma calculations of the Consolidated Leverage Debt/EBITDA Ratio as of and the last day of the fiscal quarter of the Borrower ended on June 30Interest Coverage Ratio, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of based upon the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to ’s Financial Statements for the Loan Documents has been obtained and is in effectquarter ended June 28, 2013;
(x) a certificate executed by a Responsible Officer evidence that at least $400 million of existing indebtedness of the Borrower as or its Subsidiaries constituting one or more of the Closing DateAsian Term Loans, the U.S. Term Loans, and the term credit facility under the Existing FIL Credit Agreement have been prepaid; in form and substance each case such evidence being satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative AgentAgent and subject to the Fee Letter, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, Closing Date shall be true and correct in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court on or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC FacilitySeptember 30, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent2013. 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: Term Loan Agreement (Flextronics International Ltd.)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies electronic versions (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, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Committed Loan Notice with respect to such initial Borrowing delivered in accordance with Section 2.02.
(iii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iiiiv) the Security Agreement duly executed by each Loan Party, together with:
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt referred to therein indorsed in blank; provided, however, in no event shall any such Pledged Equity represent more than 66% of a Loan Party’s Equity Interests in a Person organized under the laws of a jurisdiction other than that of the United States or any political subdivision thereof,
(B) proper financing statements in form appropriate for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(C) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken;
(v) an Intellectual Property Security Agreement duly executed by each Loan Party party thereto, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(vi) certified copies of the resolutions adopted by the disinterested members of the Board of Directors (or equivalent or comparably body) of each Loan Party approving the transactions contemplated by the Loan Documents for the purposes of the Indenture;
(vii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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;
(ivviii) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties Party is validly 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel except to the Loan Partiesextent that failure to do so could not reasonably be expected to have a Material Adverse Effect, addressed to the Administrative Agent and in each Lender, case as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may request;
(vi) a certificate of certified by a Responsible Officer of each the respective Loan Party either (A) attaching copies of all consentsParty, licenses and approvals required in connection with as 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 requiredcase may be;
(viiix) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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; Effect and (CB) a calculation (1) that attached to such certificate are copies of all consents, licenses and approvals required in connection with the Consolidated Leverage Ratio as execution, delivery and performance by each Loan Party and the validity against each Loan Party of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained to which it is a party, and is such consents, licenses and approvals shall be in full force and effect, or (2) that no such consents, licenses or approvals are so required;
(x) a certificate executed all documentation and other information that may be required by a Responsible Officer the Lenders in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the United States Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) including, without limitation, the Borrower as of the Closing Date, information described in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basisSection 12.17; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders any Lender reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 provided, that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 (Seitel Inc)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction 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 telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the New Closing Date (or, in the case of certificates of governmental officials, a recent date before the New Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this AgreementAgreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties Borrower and Trust is validly 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 do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxxxxxxx & Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx Xxxxxxx Xxxxx Xxxxx 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 may reasonably request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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 ;
(Cviii) a calculation of the Consolidated Leverage Ratio duly completed Compliance Certificate (as adjusted as appropriate) as of the last day of the fiscal quarter of the Borrower Trust ended on June 30March 31, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 20172008, signed by a Responsible Officer of the BorrowerTrust;
(ix) evidence that all insurance (other than property level insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the New Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the New 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 New Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Borrowing. The obligation of each Lender Investor to advance the Borrowings purchase Notes based on the Closing Date of its Loans Commitment hereunder is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Each Investor shall have received the following, each dated as of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orunless otherwise specified) and in such number of copies as the Investors shall have requested:
(i) a Note or Notes for each Investor, in each case duly completed in accordance with the case provisions of Section 2.1 and executed and delivered by the Company;
(ii) the Guaranty, duly completed and executed and delivered by each Subsidiary (other than any Foreign Subsidiary);
(iii) the Security Agreement, duly completed and executed and delivered by the Company and each Subsidiary (other than any Foreign Subsidiary);
(iv) the Pledge Agreement, duly completed and executed and delivered by the Company, together with any certificates evidencing the Capital Stock being pledged thereunder as of governmental officials, a recent date before the Closing DateDate and undated assignments separate from certificate for any such certificate, duly executed in blank;
(v) [Reserved];
(vi) Assignments and Grants of Security Interests for the federally registered Intellectual Property referred to in Annexes C, D and E of the Security Agreement, in substantially the form of Exhibits B and C (as applicable) to the Security Agreement, in each case duly completed and executed by each applicable Credit Party; and
(vii) The Collateral Assignments of Life Insurance Policies, duly executed and delivered by the Company and acknowledged by the relevant insurers with respect thereto;
(viii) The Warrants, duly executed and delivered by the Company in favor of CapitalSouth;
(ix) The Intercreditor Agreement, duly executed and delivered by the Senior Lender and the Company;
(x) [Reserved];
(xi) Evidence of the partial exercise of all warrants and options for the purchase of the Company’s Capital Stock in favor of Xxxxxx Partners, LP, resulting in an equity infusion of $1,000,000 in cash in the Company;
(xii) The issuance to the Investors of an aggregate of 195,000 shares of the Company’s common stock, pursuant to documentation in form and substance satisfactory to the Administrative Agent Investors (consisting of a Registration Rights Agreement substantially in the form of Exhibit I hereto and each an irrevocable instruction to the Company’s transfer agent regarding the issuance of the Lenders:shares); and
(xiii) the favorable opinion of Xxxxx & Lardner, counsel to the Company and its Subsidiaries, in form and substance reasonably satisfactory to the Investors.
(b) The Investors shall have received a certificate, signed by the president, the chief executive officer or the chief financial officer of the Company, dated the Closing Date and in form and substance reasonably satisfactory to the Investors, certifying that (i) executed counterparts all representations and warranties of this Agreement, sufficient the Credit Parties contained in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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 Investment Documents to which such Loan Party is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx 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 request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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 the Closing Date, both immediately before and after giving effect to the consummation of the Transactions, the purchase and issuance of the Notes and the application of the proceeds thereof (except to the extent any such earlier representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be true and except that for purposes correct as of this Section 4.01such date), (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the Transactions, the representations purchase and warranties contained in subsections (a) issuance of the Notes and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
, (fiii) The Borrower shall be in compliance (on a Pro Forma Basis taking into account both immediately before and after giving effect to the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any event or circumstance since the date consummation of the Audited Financial Statements that has had or could be reasonably expected to haveTransactions, either individually or in the aggregatepurchase and issuance of the Notes and the application of the proceeds thereof, a no Material Adverse Effect.
(h) The absence of any conditionEffect has occurred since December 31, circumstance, action, suit, investigation or proceeding pending or, 2005 and there exists to the knowledge of the Borrower and/or GuarantorsCompany no event, threatened in any court condition or before any arbitrator or Governmental Authority state of facts that could would reasonably be expected to have result in a Material Adverse Effect.
, (iiv) The Administrative Agent shall have received a Committed Loan Notice in accordance with both immediately before and after giving effect to the requirements hereof.
(j) The Parent REIT consummation of the Transactions, the purchase and issuance of the Notes and the Borrower shall have entered into (i) application of the PNC Facilityproceeds thereof, each of the Bank of America FacilityCredit Parties is solvent, the Capital One Facility and the US Bank Lessee Line of Credit and (iiv) a conforming amendment all conditions to the Senior Notes, each in form purchase and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality issuance of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified Notes hereunder set forth in this Section 4.01, each Lender that has signed this Agreement shall be deemed to 4.1 have consented to, approved been satisfied or accepted or to be satisfied with, each document or other matter waived as 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 theretohereunder.
Appears in 1 contract
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of its Loans hereunder is subject to shall occur upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each of which shall be originals or telecopies or in an electronic format acceptable to the Administrative Agent (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan applicable Credit Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before prior to the Closing Date) and each in a form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient Agreement in such number for distribution of copies as the Administrative Agent shall have required;
(ii) to the Administrative Agentextent requested by any Lender in accordance with Section 2.4(d), a Note or Notes for such Lender, in each Lender case duly completed in accordance with the provisions of Section 2.4(d) and executed by the Borrower;
(iiiii) a Note the Guaranty, duly completed and executed by the Borrower in favor Subsidiary Guarantors, which shall include each Wholly-Owned Subsidiary of each Lender requesting a Notethe Borrower, other than any Foreign Subsidiary to the extent doing so would cause adverse tax or regulatory consequences to the Borrower;
(iiiiv) such certificates of resolutions or other actionif any LIBOR Loans are to be borrowed prior to the 3rd Business Day after the Closing Date, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing shall have received, 3 Business Days prior to the identitydate such LIBOR Loans are to be borrowed, authority a pre-funding LIBOR indemnity letter from the Borrower and capacity a completed Notice of each Responsible Borrowing;
(v) a certificate, signed by an Authorized Officer thereof authorized to act as a Responsible Officer of the Borrower, certifying that (i) all representations and warranties of the Credit Parties contained in connection with this Agreement and the other Loan Credit Documents qualified as to which such Loan Party is a party;
(iv) copies of the Organization Documents of each Loan Party certified to materiality shall be true and complete correct and those not so qualified shall be true and correct in all material respects, in each case as of the Closing Date, both immediately before and after giving effect to the transactions contemplated hereby (except to the extent any such representation or warranty is expressly stated to have been made as of a recent date by the appropriate Governmental Authority of the state specific date, in which case such representation or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to warranty shall be true and correct as of such date), (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the Closing Date transactions contemplated hereby, (iii) both immediately before and such other documents and certifications as after giving effect to the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedtransactions contemplated hereby, no Material Adverse Effect has occurred since December 31, 2009, and there exists no event, condition or state of facts that each of the Loan Parties is validly existingcould reasonably be expected to result in a Material Adverse Effect, 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;
(viv) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel all conditions to the Loan Parties, addressed to the Administrative Agent initial extensions of credit hereunder set forth in this Section 3.1 and each Lender, in Section 3.2 have been satisfied or waived as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may requestrequired hereunder;
(vi) a certificate of a Responsible Officer the secretary or an assistant secretary of each Loan Credit Party either executing any Credit Documents as of the Closing Date, certifying (Ai) attaching copies that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all consentsamendments thereto of such Credit Party, licenses certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and approvals required that the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of such Credit Party, as then in connection with effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of such Credit Party, authorizing the execution, delivery and performance by such Loan Party of this Agreement and the validity against such Loan Party of the Loan other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of such consentsCredit Party executing this Agreement or any of such other Credit Documents, licenses and approvals shall be in full force and effect, or (B) stating that no attaching all such consents, licenses or approvals are so requiredcopies of the documents described above;
(vii) a certificate signed by as of a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) have been satisfied, (B) that there has been no event or circumstance since the recent 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) a calculation good standing of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan each Credit Party executing any Credit Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to under the Administrative Agentlaws of its jurisdiction of organization, regarding from the Solvency Secretary of State (Aor comparable Governmental Authority) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basissuch jurisdiction; and
(xiviii) such a Financial Conditions Certificate executed by the chief financial officer of the Borrower containing the copies of the financial statements referred to in Section 4.11 and confirming that, as of the Closing Date, after giving effect to the consummation of the transactions contemplated hereby, the Borrower and its Subsidiaries on a consolidated basis are solvent.
(b) All approvals, permits and consents of any Governmental Authorities, any Self-Regulatory Organizations, or other assurancesPersons required in connection the consummation of any of the transactions contemplated hereby shall have been obtained, certificates, documents, consents or opinions as without the imposition of conditions that are materially adverse to the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder Lenders; all applicable waiting periods shall have expired without any adverse action being taken or under the Fee Letters on threatened by any Governmental Authority or before the Closing Date Self-Regulatory Organization having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agentinstituted, the Borrower threatened or proposed before, and no order, injunction or decree shall have paid all reasonable feesbeen entered by, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or other Governmental Authority or any Self-Regulatory Organization, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or to impose materially adverse conditions upon, this Agreement, any of the other Credit Documents or the consummation of the transactions contemplated hereby or that could reasonably be expected to have a Material Adverse Effect.
(ic) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) amended its existing Credit Agreement, dated as of January 12, 2007, as amended by the PNC FacilityFirst Amendment to Credit Agreement dated as of August 24, 2007, the Bank Second Amendment to Credit Agreement dated as of America FacilityJune 13, 2008, and as amended and restated by the Capital One Facility Amendment and Restatement Agreement, dated as of April 9, 2009, with Xxxxx Fargo, as administrative agent, BofA, as syndication agent and the US Bank Lessee Line lenders party thereto (the “Existing 2007 Credit Facility”) to (x) permit the consummation of Credit the transactions contemplated hereby, and (iiy) a conforming amendment to make certain other amendments thereto requested by the Senior Notes, each in form Borrower and substance reasonably satisfactory to the Administrative Agent. Without limiting Agent and (ii) complied with all terms and conditions in the generality definitive documentation of such amendment.
(d) The Borrower shall have (i) amended its existing Credit Agreement, dated as of April 9, 2009, with Xxxxx Fargo, as administrative agent, BofA, as syndication agent and the lenders party thereto, providing for a revolving credit facility in the aggregate principal amount of $100,000,000 and a term loan credit facility in the amount of $200,000,000 (the “Existing 2009 Credit Facility”), to (x) permit the consummation of the provisions transactions contemplated hereby, (y) terminate the revolving credit commitments of the last paragraph lenders thereunder, and (z) make certain other amendments thereto requested by the Borrower and reasonably satisfactory to the Administrative Agent and (ii) complied with all terms and conditions in the definitive documentation of Section 9.03such amendment.
(i) All principal, interest and other amounts outstanding under the Borrower’s existing Credit Agreement, dated as of April 9, 2009, with ICE Trust, Xxxxx Fargo, as administrative agent, BofA, as syndication agent and the lenders party thereto, providing for purposes a 364-day revolving credit facility in the aggregate principal amount of determining compliance with $300,000,000 (the conditions specified in this Section 4.01, each Lender that has signed this Agreement “Terminating Liquidity Facility”) shall be deemed paid in full, and (ii) all commitments to have consented to, approved or accepted or extend credit under the agreements and instruments relating to the Terminating Liquidity Facility and all guarantees relating thereto shall 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 terminated; and the Administrative Agent shall have received notice from such Lender prior evidence of the foregoing satisfactory to it.
(f) Since December 31, 2009, both immediately before and after giving effect to the proposed transactions contemplated hereby, there shall not have occurred (i) a Material Adverse Effect or (ii) any event, condition or state of facts that could reasonably be expected to have a Material Adverse Effect.
(g) The Borrower shall have paid (i) to the Arrangers, the fees required under the Joint Fee Letter to be paid to them on the Closing Date, in the amounts due and payable on the Closing Date specifying its objection thereto.as required by the terms thereof, (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Xxxxx Fargo Fee Letter, and
Appears in 1 contract
Samples: Credit Agreement
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly 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 Agent, Arrangers and each of the Lenderstheir respective legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) if requested by any Lender at least two Business Days before the Closing Date, a Note executed by the Borrower in favor of each Lender so requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers or the corporate secretary or assistant secretary of each Loan Party 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) copies each of the Organization Documents following documents:
(A) the articles or certificate of each Loan Party incorporation and the bylaws of the Borrower as in effect on the Closing Date, certified to be true by the Secretary or Assistant Secretary of the Borrower as of the Closing Date; and
(B) a good standing and complete tax good standing certificate for the Borrower from the applicable Secretary of State (or similar, applicable Governmental Authority) of the States of Delaware and California dated as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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 qualificationdate;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Partiesopinions, addressed to the Administrative Agent and each Lenderthe Lenders, of Lxxxxxx X. Xxxxxx, Executive Vice President and General Counsel of the Borrower, as to the matters set forth in Exhibit C and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer fully executed or conformed copy of each Loan Party either (A) attaching copies of all consents, licenses Related Agreement and approvals required any material documents executed 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 partytherewith, and such consents, licenses and approvals each Related Agreement shall be in full force and effecteffect and no provision thereof shall have been modified or waived in any respect reasonably determined by Administrative Agent to be materially adverse to the Lenders, or (B) stating that no such consents, licenses or approvals are so requiredin each case without the consent of the Administrative Agent;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying Borrower:
(A) that certifying that:
(1) the conditions specified representations and warranties contained in Sections 4.01(d)Article V and the other Loan Documents are true and correct on and as of such date, as though made on and as of such date;
(e2) and no Default or Event of Default exists or would result from the initial Borrowing;
(f3) have been satisfied, (B) that there has been occurred since December 31, 2005, no event or circumstance since the date of the Audited Financial Statements that has had resulted or could reasonably be reasonably expected to have, either individually or result in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii4) a duly completed Compliance Certificate as each of the last day of conditions in this Section 4.01 have been satisfied on the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer part of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi5) the Borrower will consummate the Merger in accordance with the Merger Agreement concurrently with the making of the initial Loans and, in connection with such consummation, all material conditions to the Merger set forth in the Merger Agreement shall have been satisfied or the fulfillment of any such material conditions shall have been waived with the written consent of Administrative Agent; and
(B) designating the Closing Date; and
(C) indicating the Debt Ratings; and
(viii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required by the Loan Documents to be paid hereunder to the Administrative Agent, the Arrangers or under the Fee Letters any Lender on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) Since December 31, 2005, no change, occurrence or development shall have occurred or become known to the Administrative Agent that could, in the opinion of the Administrative Agent, have a material adverse effect on (a) the business, assets, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Borrower, Per-Se and their respective subsidiaries taken as a whole or (b) a material adverse effect upon the potential legality, validity, binding effect or enforceability against the Borrower of any of the Loan Documents or upon the Borrower’s potential ability to perform its obligations under any Loan Documents.
(e) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loanthe initial Borrowing, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(ef) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11initial Borrowing.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(jh) The Parent REIT and the Borrower Closing Date shall have entered into (i) the PNC Facilityoccurred on or before February 23, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent2007. Without limiting the generality of the provisions of the last paragraph of Section 9.039.05, 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 Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly 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 each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party 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 is a partyDocuments;
(iv) copies each of the Organization Documents following documents:
(A) a certificate for the Borrower from the Secretary of State of the State of Delaware listing the Certificate of Incorporation and each Loan Party certified amendment, if any, thereto, on file in his office and stating that such documents are the only charter documents of the Borrower on file in his office and that the Borrower is duly incorporated and in good standing in the State of Delaware, and has filed all franchise tax returns and has paid all franchise taxes required by law to be true filed and complete as of a recent date paid by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the date of his certificate; and
(B) signed certificates of the Secretaries of State (or other appropriate officials) of each appropriate State set forth on Schedule 4.01, dated reasonably near the Closing Date and such other documents and certifications as Date, certifying that the Administrative Agent may reasonably require to evidence that each Loan Party Borrower is duly organized or formed, qualified and that each of the Loan Parties is validly existing, in good standing and qualified to engage as a foreign corporation in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationState;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLPSidley Austin Brown & Wood, counsel to the Loan PartiesBorrower, addressed to the Adminxxxxxxxxx Xxent xxx each Lender, substantially in the form set forth in Exhibit G-1 and such other matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(vi) a favorable opinion of Peer L. Anderson, Vice President and General Counsel to the Borrower, addxxxxxx xx xhe Administrative Agent and each Lender, as to substantially in the form set forth in Exhibit G-2 and such other matters concerning the Loan Parties Borrower and the Loan Documents as the Administrative Agent Required Lenders may reasonably request;
(vivii) a favorable opinion of Oscar Murillo, General Counsel to PDVSA, addressed to the Administraxxxx Xxxxx xxd each Lender, substantially in the form set forth in Exhibit G-3 and such other matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(viii) a certificate of a Responsible Officer of each Loan Party the Borrower either (A) attaching copies of all consents, licenses and approvals 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 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements September 30, 2002 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; , and (C) a calculation of (x) the Consolidated Leverage Ratio Capitalization Ratio, (y) the ratio of EBITDA to Interest Expense, and (z) the Net Worth of the Borrower as of the last day of the fiscal quarter Fiscal Quarter of the Borrower most recently ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant prior to the Loan Documents has been obtained and is in effectClosing Date;
(x) a certificate executed by a Responsible Officer certificates of insurance demonstrating that the Borrower and each of its Subsidiaries has procured with responsible insurance companies insurance with respect to its properties and business (including business interruption insurance) against such casualties and contingencies and of such types, in such amounts and with such deductibles as of is required by Section 6.05;
(xi) evidence that the Existing Credit Agreements have been or concurrently with the Closing Date, in form Date are being terminated and substance satisfactory to all loans outstanding thereunder have been or concurrently with the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basisClosing Date are being repaid; and
(xixii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) There shall be no threatened or pending litigation, inquiry, or investigation contesting the Loan Documents or any transaction contemplated thereby.
(c) Any fees and expenses required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(cd) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced for work performed 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 Initial Borrowing. The effectiveness of this Agreement and the obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Loan hereunder is are 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 telecopies or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyOfficer, 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, sufficient in number for distribution to executed and delivered by the Administrative Agent, the Borrower, the Guarantors and each Lender and the Borrowerlisted on Schedule 2.01;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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 partyDocuments;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Credit Party is duly organized or formed, and that each of the Loan Parties Credit Party is validly existing, 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 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 opinions of Xxxxxxxx Xxxxxx Xxxxxxxx (A) Xxxxxxx Xxxxxx, General Counsel of the Parent, and Xxxx (B) Sidley Austin LLP, counsel to the Loan Credit 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 request;
(vi) a certificate of signed by a Responsible Officer of each Loan Party either certifying (A) attaching copies of all consents, licenses and approvals required that the conditions specified 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 Section 4.02 have been satisfied; (B) stating no action, suit, investigation or proceeding is pending or, to the knowledge of any Credit Party, is threatened in any court or before any arbitrator or governmental authority related to the Facilities or that no such consentswould reasonably be expected to have a Material Adverse Effect; and (C) that there has not occurred since December 31, licenses 2014, after giving pro forma effect to the transactions to occur on the Closing Date (including, without limitation, all Borrowings to occur on the Closing Date), any event or approvals are so requiredcondition that has had, or would reasonably be expected, either individually or in the aggregate, to have, a Material Adverse Effect;
(vii) a certificate, attached hereto as Exhibit E, signed by a Responsible Officer and evidencing that, giving pro forma effect as of September 30, 2015 to the transactions to occur on the Closing Date (including, without limitation, all Borrowings to occur on the Closing Date), as of the date of the Closing Date, the Borrower is in pro forma compliance with the financial covenants contained in Section 7.10, and including a schedule of Unencumbered Properties, all in form and detail reasonably satisfactory to the Administrative Agent;
(viii) a certificate signed by a Responsible Officer of the Borrower applicable Credit Party certifying (A) that no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the conditions specified in Sections 4.01(d)execution, (e) and (f) delivery or performance by, or enforcement against, the Credit Parties of this Agreement or any other Loan Document, except for such approvals, consents, exemptions, authorizations or other actions or notices or filings which have already been satisfied, (B) that there has been no event completed 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrowerobtained;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained financial statements referenced in Section 5.05(a) and is in effect(b);
(x) a certificate letter of direction, executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each with respect to proceeds of the other Loan Parties, and initial Borrowing;
(Cxi) evidence that the Consolidated Parties on a consolidated basisRequired Swap Contracts will be effective substantially concurrently with the initial Borrowing; and
(xixii) such other assurances, certificates, documents, consents instruments, agreements or opinions information as the Administrative Agent or the Required Lenders reasonably may requirereasonably request.
(b) Any fees required to be paid hereunder or under by the Fee Letters Borrower on or before prior to the Closing Date pursuant to the Loan Documents and all expenses required to be reimbursed by the Borrower on or prior to the Closing Date pursuant to the Loan Documents shall have been paid paid, provided that (provided i) all such fees may and expenses will be paid from disbursed contemporaneously with the disbursement of the proceeds of the initial Borrowing and (ii) invoices for such initial Loan).
expenses have been presented to the Borrower a reasonable period of time (cand in any event not less than one (1) Unless Business Day) prior to the Closing Date (including, unless waived by the Administrative Agent, the Borrower shall have paid all reasonable reasonable, documented, out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (paid directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent)).
(dc) The representations Credit Parties shall have provided the documentation and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, except information to the extent Lenders that such representations is required by regulatory authorities under applicable “know your customer” and warranties specifically refer to an earlier dateanti-money-laundering rules and regulations, in which case they shall be true and correct in all material respects as of such earlier dateincluding, and except that for purposes of this Section 4.01without limitation, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative AgentPatriot 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, (i) this Agreement and each other document to which it is a party or which it has reviewed or (ii) any 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: Term Loan and Guaranty Agreement (Care Capital Properties, Inc.)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Unless waived by all the Lenders (or by the Administrative Agent with respect to immaterial matters or items specified in clause (v) or (vi) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (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 Agent, the Lenders and each of the Lenderstheir respective legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting such a Note, each in a principal amount equal to such Lender's Commitment;
(iii) executed counterparts of the Guaranty from each Eligible Material Subsidiary;
(iv) executed counterparts of Stock Pledge Agreements from the Pledgors with respect to 65% of any and all Equity Securities of the Ineligible Material Subsidiaries comprising the First Tier Foreign Subsidiaries;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Loan Party that is a Domestic Subsidiary 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 in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(ivvi) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications evidence as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized verify the due organization or formedformation, and that each of the Loan Parties is validly existing, in good standing and qualified qualification to engage in do business with respect to the Borrower and each other Loan Party that is a Domestic Subsidiary in each such Person's jurisdiction of organization and in the jurisdiction where each such Person maintains its ownership, lease or operation principal place of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx 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 request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 requiredbusiness;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that June 30, 2001 which has had or could be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect, except as disclosed (I) in public filings by the Borrower or SCI with the SEC or (II) in press releases of the Borrower or SCI or other public disclosures of the Borrower or SCI, in each case publicly filed or publicly released after June 30, 2001 but prior to the date hereof; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017current Debt Ratings;
(viii) a duly completed Compliance Certificate as an opinion of the last day of the fiscal quarter of U.S. counsel to the Borrower ended on June 30, 2017, signed by and each Loan Party that is a Responsible Officer Domestic Subsidiary substantially in the form of the BorrowerExhibit G;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative AgentAgent that the security interests in the Pledged Shares of the First Tier Foreign Subsidiaries granted by the Borrower and its Subsidiaries to the Collateral Agent (on behalf of the Lenders) pursuant to the Stock Pledge Agreements have been properly perfected with first priority (including the delivery to the Collateral Agent for the benefit of the Lenders all of the Pledged Shares, regarding accompanied in each case by executed and undated stock powers (or other applicable documents or agreements)), except for such opinions of counsel and such other documents and assurances relating to Foreign Subsidiaries, or the Solvency of Equity Securities thereof, which shall be delivered pursuant to Section 6.14;
(Ax) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basisDisclosure Letter; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with sufficient copies for the requirements hereof.
(j) The Parent REIT Lenders, in form and substance satisfactory to it and the Lenders, each certified by a Responsible Officer of the Borrower shall have entered into (i) the PNC FacilityAudited Financial Statements, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) (A) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, 2000, March 31, 2001 and June 30, 2001, and the related consolidated statements of income, shareholders' equity and cash flows, for the fiscal quarters then ended and (B) the unaudited consolidated balance sheet of SCI and its Subsidiaries as at September 30, 2001 and the related consolidated statements of income, shareholders' equity and cash flows, for the fiscal quarter then ended and (iii) the pro forma balance sheet of and five-year financial statement projections for the Borrower and its Subsidiaries and SCI and its Subsidiaries as of and commencing at September 30, 2001, and a conforming amendment completed Compliance Certificate as of September 30, 2001 (which certificate may omit any reference to the Senior Notescovenant set forth at Section 7.13(a)) based on such pro forma balance sheet and projections, each in form and substance reasonably satisfactory giving effect to the Administrative Agent. Without limiting SCI Merger and the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified transactions contemplated 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 theretoconnection therewith and reflecting good faith estimated purchase price accounting adjustments.
Appears in 1 contract
Samples: Credit Agreement (Sanmina-Sci Corp)
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings initial Borrowing hereunder, and the obligation of any Issuing Lender to issue Letters of Credit hereunder on the Closing Date of its Loans hereunder Date, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies (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 Dateunless otherwise specified) and each in form and substance satisfactory to such number of copies as the Administrative Agent and each of the Lendersshall have requested:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) to the extent requested by any Lender in accordance with Section 2.11(c), a Note or Notes for such Lender, in each case duly completed in accordance with the provisions of Section 2.11(c) and executed by the Borrower in favor of each Lender requesting a NoteBorrowers;
(iii) such certificates the Guaranty, duly completed and executed by the Managing Member and each of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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;Subsidiary Guarantors; and
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLPXxxxx Xxxxxxx, counsel to the Loan Credit 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 request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 .
(b) The Administrative Agent shall have received notice a certificate, signed by the president, the chief executive officer or the chief financial officer of Group, dated the Closing Date and in form and substance reasonably satisfactory to the Administrative Agent, certifying that (i) all representations and warranties of the Consolidated Entities contained in this Agreement and the other Credit Documents are true and correct as of the Closing Date, both immediately before and after giving effect to the consummation of the Transactions (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be true and correct as of such date), (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the Transactions, and (iii) all conditions to the initial extensions of credit hereunder set forth in this Section 4.1 and in Section 4.2 have been satisfied or waived as required hereunder.
(c) The Administrative Agent shall have received a certificate of the secretary or an assistant secretary of each Credit Party or its managing member or manager, dated the Closing Date and in form and substance reasonably satisfactory to the Administrative Agent, certifying (i) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of such Credit Party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of such Credit Party, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such Lender certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of such Credit Party, authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of such Credit Party executing this Agreement or any of such other Credit Documents, and attaching all such copies of the documents described above.
(d) The Administrative Agent shall have received (i) a certificate as of a recent date of the good standing of each Credit Party executing any Credit Documents as of the Closing Date, under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction, and (ii) a certificate as of a recent date of the qualification of each Credit Party to conduct business as a foreign corporation in such jurisdictions as the Administrative Agent may have reasonably requested, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction.
(e) Group shall have paid (i) to the Arrangers and Xxxxx Fargo, the fees required under each Fee Letter to be paid to them on the Closing Date, in the amounts due and payable on the Closing Date as required by the terms thereof, and (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Xxxxx Fargo Fee Letter, and (iii) all other fees and reasonable expenses of the Arrangers, the Administrative Agent and the Lenders required hereunder or under any other Credit Document to be paid on or prior to the proposed Closing Date specifying its objection thereto(including reasonable fees and expenses of counsel) in connection with this Agreement and the transactions contemplated hereby.
(f) The Administrative Agent shall have received an Account Designation Letter, together with written instructions from an Authorized Officer of each Borrower, including wire transfer information, directing the payment of the proceeds of the initial Loans, if any, to be made hereunder.
(g) The Administrative Agent shall have received from the Managing Member and each Borrower all documentation and other information requested by the Administrative Agent that is required to satisfy applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
(h) Each of the Administrative Agent and each Lender shall have received such other documents, certificates, opinions and instruments in connection with the transactions contemplated hereby as it shall have reasonably requested.
Appears in 1 contract
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings on the Closing Date of its Loans initial Borrowing hereunder is subject to the satisfaction on or prior to the Closing Date of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies (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 a Note for each Lender that is a party hereto as of this Agreementthe Closing Date, sufficient in number for distribution to the Administrative Agentamount of such Lender's Commitment, each Lender duly completed in accordance with the relevant provisions of Section 2.4 and executed by the Borrower;; and
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLPJohn McCann, counsel to the Loan PartiesBorrower, in substxxxxxxxx xxx form of Exhibit E, addressed to the Administrative Agent and each Lender, as to the Lenders and addressing such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent or any Lender may reasonably request;, in sufficient copies for each Lender.
(vib) The Administrative Agent shall have received a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017certificate, signed by a Responsible Officer the president, the chief executive officer, the chief operating officer, the chief financial officer or the treasurer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding certifying that (i) all representations and warranties of the Solvency Borrower contained in this Agreement and the other Credit Documents are true and correct as of (A) the BorrowerClosing Date, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, (Bii) each no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the other Loan Partiestransactions contemplated hereby, (iii) both immediately before and after giving effect to the consummation of the transactions contemplated hereby, no Material Adverse Change has occurred since December 31, 1997, and there exists no event, condition or state of facts that could reasonably be expected to result in a Material Adverse Change, and (Civ) all conditions to the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid initial extensions of credit hereunder or under the Fee Letters on or before the Closing Date shall set forth in this Section have been paid (provided such fees may be paid from the proceeds of such initial Loan)satisfied or waived as required hereunder.
(c) Unless waived by The Administrative Agent shall have received a certificate of the secretary or an assistant secretary of the Borrower, in form and substance satisfactory to the Administrative Agent, certifying (i) that attached thereto is a true and complete copy of the certificate of incorporation and all amendments thereto of the Borrower shall have paid certified as of a recent date by the Secretary of State of Delaware, and that the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the bylaws of the Borrower as then in effect and as in effect at all reasonable feestimes from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, charges and disbursements (iii) that attached thereto is a true and complete copy of counsel authorizing resolutions duly adopted by the Borrower authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party, and as to the Administrative Agent (directly to such counsel if requested by incumbency and genuineness of the Administrative Agent) to signature of each officer of the extent invoiced prior to Borrower executing this Agreement or on the Closing Date, plus such additional amounts any of such feesother Credit Documents, charges and disbursements as shall constitute its reasonable estimate attaching all such copies 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 Borrower and the Administrative Agent)documents described above.
(d) The representations and warranties Administrative Agent shall have received (i) a certificate as of a recent date of the good standing of each of the Borrower and each other Loan Party contained in Section 5 the Significant Subsidiaries under the laws of its jurisdiction of organization, from the Secretary of State (or any other Loan Documentcomparable governmental or regulatory authority or agency) of such jurisdiction, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and (ii) a certificate as of the a recent date of such Loanthe qualification of the Borrower to conduct business as a foreign corporation in the State of Connecticut, except to from 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 Secretary of such earlier date, and except that for purposes State of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01Connecticut.
(e) No Default All legal matters, documentation, and corporate or other proceedings incident to the transactions contemplated hereby shall existbe satisfactory in form and substance to the Administrative Agent; all approvals, permits and consents of any governmental or would result fromregulatory authorities or agencies (including, such proposed Borrowing without limitation, all relevant Insurance Regulatory Authorities) or from other Persons, if any, required in connection with the application execution and delivery of this Agreement and the other Credit Documents and the consummation of the proceeds thereof.
(f) The Borrower transactions contemplated hereby and thereby shall have been obtained, without the imposition of conditions that are not acceptable to the Administrative Agent, and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in compliance (on a Pro Forma Basis taking into account full force and effect and the Administrative Agent shall have received such copies thereof as it shall have requested; all applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There waiting periods shall not have occurred expired without any event adverse action being taken by any governmental or circumstance since the date of the Audited Financial Statements that has had regulatory authority or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(h) The absence of any condition, circumstance, agency having jurisdiction; and no action, suitproceeding, investigation investigation, regulation or proceeding pending or, to the knowledge of the Borrower and/or Guarantorslegislation shall have been instituted, threatened in or proposed before, and no order, injunction or decree shall have been entered by, any court or before other governmental or regulatory authority or agency, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or that is otherwise related to or arises out of, this Agreement, any arbitrator of the other Credit Documents or Governmental Authority the consummation of the transactions contemplated hereby or thereby, or that could reasonably be expected to have a Material Adverse Effect.
(f) Since December 31, 1997, both immediately before and after giving effect to the consummation of the transactions contemplated by this Agreement, there shall not have occurred any Material Adverse Change or any event, condition or state of facts that could reasonably be expected to result in a Material Adverse Change.
(g) The Borrower shall have paid (i) to the Administrative Agent, the initial payment of the annual administrative fee described in paragraph (2) of the Fee Letter, and (ii) all other fees and expenses of the Administrative Agent and the Lenders required hereunder or under any other Credit Document to be paid on or prior to the Closing Date (including reasonable fees and expenses of counsel) in connection with this Agreement and the transactions contemplated hereby.
(h) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereofan Account Designation Letter.
(ji) The Parent REIT Administrative Agent and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 other documents, certificates, opinions and instruments in connection with the proposed Closing Date specifying its objection theretotransactions contemplated hereby as it shall have reasonably requested.
Appears in 1 contract
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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 do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Borrower (on behalf of each of the Loan Parties), addressed to the Administrative Agent and each Lender, as to the matters set forth 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 each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower Parent certifying (A) that each Consolidated Party is in compliance 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, and (4) the Loan Parties are in compliance with each of the financial covenants set forth in Section 7.11; (D) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) have been satisfied, ; (BE) 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 (CF) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017current Credit Ratings;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) There shall not have occurred a material adverse change since December 31, 2007 in the business, assets, operations, condition (financial or otherwise) or prospects of the Borrower and the other Loan Parties taken as a whole, or in the facts and information regarding such entities as represented to date.
(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.
(d) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(ce) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its their reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it them through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 1 contract
Samples: Term Loan Credit Agreement (Tanger Factory Outlet Centers Inc)
Conditions of Initial Borrowing. The obligation of each the Lender to advance the Borrowings on the Closing Date of make its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative AgentLender’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif ” via e-mail) (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 LendersLender:
(i) executed counterparts of this Agreement, Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent Lender 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;
(iviii) copies of the each Loan Party’s Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent Lender may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Parties Party is validly 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 would not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx certification to the Lender by Klee, Tuchin, Xxxxxxxxx & Xxxxx LLP, counsel to the Loan Parties, addressed that such counsel has reviewed the docket in the Chapter 11 Case and confirmed that there was no notice filed or motion pending with the Bankruptcy Court to appeal, reverse, stay or vacate the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may requestInterim Borrowing Order;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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;
(viiv) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.03(a) and (f4.03(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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ixvi) evidence that all insurance required to be maintained pursuant to the Loan Documents has and all endorsements in favor of the Lender required under the Loan Documents have been obtained and is are in effect;
(xvii) a certificate the Security Documents, each duly executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of applicable Loan Parties;
(Aviii) the Borrower, (B) each of the all other Loan Documents, each duly executed by the applicable Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xiix) such other assurancesall documents and instruments, certificatesincluding Uniform Commercial Code financing statements, documents, consents required by law or opinions as reasonably requested by the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required Lender to be paid hereunder filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Fee Letters on or before the Closing Date Loan Documents and all such documents and instruments shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agentso filed, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel registered or recorded to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties satisfaction of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01Lender.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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: Senior Secured, Super Priority Debtor in Possession Credit Agreement (B. Riley Financial, Inc.)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction 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 telecopies (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 of this AgreementAgreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrowers;
(ii) (A) a Term Note executed by the Borrower Borrowers in favor of each Term Lender requesting a Term Note and (B) a Revolving Credit Note executed by Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of Borrowers and the Loan Parties Trust is validly 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 do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxxxxxxx & Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx Xxxxxxx Xxxxx Xxxxx 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 may reasonably request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower Borrowers certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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 ;
(Cviii) a calculation of the Consolidated Leverage Ratio duly completed Compliance Certificate (as adjusted as appropriate) as of the last day of the fiscal quarter of the Borrower Trust ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 20172007, signed by a Responsible Officer of the BorrowerTrust;
(ix) evidence that all insurance (other than property level insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of evidence that the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of applicable Company or Companies (A) have acquired or concurrently on the BorrowerClosing Date are acquiring a fee simple interest (or own such Properties as Fee-in-Lieu Properties) in the Carolina Portfolio (other than the Xxxxxxxxxx Complex), and (B) each in the aggregate, have invested, on or concurrently with the requested Term Loan, not less than $97,000,000 of the purchase price of the Carolina Portfolio (other Loan Partiesthan the Xxxxxxxxxx Complex) (the “Carolina Investment”), and (C) the Consolidated Parties on Carolina Investment is not from proceeds of a consolidated basisLoan; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower Borrowers and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date or immediately prior to 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, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note the Pledge and Security Agreement duly executed and delivered by the Borrower in favor of each Lender requesting a NoteBorrower;
(iii) the Securities Account Control Agreement, duly executed and delivered by the Borrower;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party 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;
(ivv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require (but only to the extent such concept exists under relevant applicable law) to evidence that each Loan Party the Borrower is duly organized or formed, and that each of the Loan Parties it is validly 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 qualificationstanding;
(vvi) a favorable opinion opinions of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan PartiesBorrower, in form and substance acceptable to the Administrative Agent in its reasonable discretion and 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 request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 confirming that any Borrowing by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) under this Agreement does not and (f) 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 would not breach any borrowing restrictions applicable to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017and the Organization Documents or any other document relating to the Borrower;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower[reserved];
(ix) evidence an account statement or similar statement by the Custodian that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is Eligible Investments listed on Schedule 5.01 hereto are held in effect;
(x) a certificate executed the Collateral Accounts or are otherwise held by a Responsible Officer the Custodian on behalf of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 (Sound Point Meridian Capital, Inc.)
Conditions of Initial Borrowing. The effectiveness of this Agreement and the obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is are subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies e-mails (in a .pdf format) (followed promptly by originalsoriginals to the extent set forth below or otherwise requested by Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing each Loan PartyParty (as applicable), each dated on or before 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 AgreementAgreement and the other Loan Documents, sufficient in such number for distribution to the as requested by Administrative Agent, each Lender and the Borrower;
(ii) a Note Notes executed by the Borrower Xxxxxxxx in favor of each Lender requesting a NoteNote (which, to the extent delivered via e-mail (in a .pdf format) shall be followed promptly by originals);
(iii) a completed and executed BAQ in the form of Exhibit H attached hereto signed by Xxxxxxxx;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each the Loan Party Parties 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 a Loan Party is a party;
(ivv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly existing, in good standing and qualified to engage in business in (A) its jurisdiction of organization 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;
(vvi) a favorable opinion of (A) Xxxxxxxx Xxxxxx & Xxxxxxxx and Xxxx LLP, counsel to the Loan PartiesXxxxxxxx and Guarantor in New York, (B) Fragner Xxxxxxx Xxxx Xxxxx, LLP, counsel to Borrower in California and Texas, and (C) Xxxxxxx LLP, counsel to CMCT in Maryland, 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;
(vivii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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;
(viiviii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements September 30, 2022 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; , and (C) a calculation that, after giving effect to all requested Borrowings to be made on the Closing Date, the Total Outstandings shall not exceed the lesser of the Consolidated Leverage Ratio Facility Amount and the Borrowing Base then in effect;
(ix) a duly completed Borrowing Base Compliance Certificate signed by a Responsible Officer of Administrative Borrower that is responsible for the financial affairs of Borrower, setting forth and certifying the amount of the Borrowing Base in effect as of the last day Closing Date;
(x) a duly completed Financial Covenant Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer, controller or other executive responsible for the financial affairs of CMCT, certifying compliance with the financial covenants set forth in Section 6.20 as of the fiscal quarter of the Borrower ended on June Consolidated Group ending September 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 302022, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required together with backup documentation acceptable to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and;
(xi) the financial statements referenced in Section 5.05(a);
(xii) such other assurances, certificates, documents, consents additional customary assurances or opinions certifications with respect to satisfaction of the conditions precedent in Article IV as the Administrative Agent or the Required Lenders reasonably may require; and
(xiii) Administrative Agent and each Lender shall have received all documentation and other information that 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 Patriot Act; and
(xiv) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five (5) days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least ten (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 (xv) shall be deemed to be satisfied).
(b) Any All fees required to be paid hereunder or under the Fee Letters Letter to be paid on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of Xxxxxx & Xxxxxxxxxx LLP, as outside counsel to the Administrative Agent (directly to such counsel 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 Borrower and the Administrative Agent).
(d) The representations Substantially concurrently with the Closing Date, all Indebtedness under the Existing Facility (including all unpaid principal, interest, fees, expenses and warranties of the Borrower and each other Loan Party contained in Section 5 or any other Loan Document, or which are contained in any document furnished at any time under amounts owing thereunder or in connection herewith or therewith, ) shall be true have been repaid in full and correct in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01commitments thereunder have been terminated.
(e) No Default Borrower shall exist, have executed and delivered or would result from, such proposed caused to be executed and delivered all Project Information with respect to the Projects included in the Borrowing or from the application Base as of the proceeds thereofClosing Date.
(f) The Borrower Security Instruments covering each initial Borrowing Base Property delivered to Administrative Agent pursuant to Section 4.01(e) shall be have been duly recorded (or have been delivered to the Title Company for recording) in compliance (on a Pro Forma Basis taking into account the applicable Loan) with official records of the financial covenants set forth counties in Section 7.11which the initial Borrowing Base Properties are located.
(g) There The financing statements delivered to Administrative Agent pursuant to Section 4.01(e) above shall not have occurred any event or circumstance since the date been submitted for filing with all of the Audited Financial Statements that has had or could be reasonably expected officials necessary, in Administrative Agent’s reasonable judgment, to have, either individually or in perfect the aggregate, a Material Adverse Effectsecurity interests created by the collateral documents relating to the initial Borrowing Base Properties and all related personal property.
(h) The absence of any conditionAdministrative Agent shall have received satisfactory evidence that all other actions necessary, circumstance, action, suit, investigation or proceeding pending orin Administrative Agent’s reasonable judgment desirable, to perfect and protect the knowledge first priority security interests (subject to Permitted Encumbrances) for the benefit of Administrative Agent and Lenders created by the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to Security Instrument and the other Loan Documents have a Material Adverse Effectbeen taken.
(i) The Administrative Agent shall have received reasonably satisfactory evidence that Xxxxxxxx has paid all title insurance premiums, documentary stamp taxes, recording fees and mortgage taxes payable in connection with the initial Borrowing Base Properties, the recording of the collateral documents relating to the initial Borrowing Base Properties or the issuance of the Title Policies relating thereto, including any sums due in connection with any future advances.
(j) Administrative Agent shall have received a Committed Loan Notice in accordance separate Title Policy, or evidence of a commitment therefor reasonably satisfactory to Administrative Agent, issued by Title Company, together with all endorsements thereto reasonably required by Administrative Agent, naming Administrative Agent as the requirements hereofinsured, insuring that the Security Instrument encumbering each initial Borrowing Base Property is a valid first priority lien (subject to Permitted Encumbrances) upon such Borrowing Base Property, and showing such Borrowing Base Property subject only to such Security Instrument and Permitted Encumbrances.
(jk) The Parent REIT Administrative Agent and the Borrower Lenders shall have entered into received evidence that all insurance policies required pursuant to Section 6.16 are being maintained by Borrower (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agentwith all premiums having been paid thereunder). Without limiting the generality of the provisions of the last paragraph of Section 9.039.01(c)(ii), 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: Credit Agreement (Creative Media & Community Trust Corp)
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings on the Closing Date of its Loans initial Borrowing hereunder is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies the date of this Agreement (followed promptly by originals) unless otherwise specified) and, each properly executed by a Responsible Officer of except for the signing Loan Party, each dated Notes and any certificates or instruments required to be delivered under the Closing Date (orPledge and Security Agreement, in the case of certificates of governmental officials, a recent date before the Closing Date) and sufficient copies for each in form and substance satisfactory to the Administrative Agent and each of the LendersLender:
(i) executed counterparts of this Agreement, sufficient in number a Note for distribution to the Administrative Agent, each Lender that is a party hereto as of the Closing Date, in the amount of such Lender's Commitment, duly completed in accordance with SECTION 2.4 and executed by the Borrower;
(ii) a Note executed by an agreement of the Borrower in favor of each Lender requesting a NoteSubsidiary Guarantors consenting to this Agreement and acknowledging their continuing obligations under the Subsidiary Guaranty with respect to the Obligations;
(iii) such the Pledge and Security Agreement, duly completed and executed by the Borrower and by each Subsidiary Guarantor, together with any certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct Capital Stock pledged thereunder as of the Closing Date and undated assignments separate from certificate for any such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is certificate, duly organized or formedexecuted in blank, and that each of the Loan Parties is validly existingany promissory notes pledged thereunder, duly endorsed 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;blank; and
(viv) a the favorable opinion opinions of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLPMungxx, Xxllxx & Xlsox, xxecial counsel to the Loan PartiesBorrower, in substantially the form of EXHIBIT G, addressed to the Administrative Agent and each Lender, as to the Lenders and addressing such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;.
(vib) The Agent shall have received a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017certificate, signed by a Responsible Officer the president, the chief executive officer or the chief financial officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of certifying that (Ai) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 or any this Agreement and the other Loan Document, or which Credit Documents are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such LoanClosing Date, except both immediately before and after giving effect 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 consummation of such earlier date, and except that for purposes of this Section 4.01the transactions contemplated hereby, the representations making of the initial Loans hereunder and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the Senior Notesconsummation of the transactions contemplated hereby, each in form the making of the initial Loans hereunder and substance reasonably satisfactory the application of the proceeds thereof, (iii) both immediately before and after giving effect to the Administrative Agent. Without limiting the generality consummation of the provisions transactions contemplated hereby, the making of the last paragraph initial Loans hereunder and the application of Section 9.03the proceeds thereof, for purposes no Material Adverse Change has occurred since December 31, 1997 and there exists no event, condition or state 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.facts
Appears in 1 contract
Samples: Credit Agreement (Orthalliance Inc)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedentprecedent except as otherwise agreed between the Borrower and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (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, sufficient in number for distribution to Agreement from the Administrative Agent, each Lender Borrower and the BorrowerGuaranty from each of the Persons listed on Schedule 1;
(ii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least five (5) Business Days in advance of the Closing Date;
(iii) [Reserved];
(iv) such certificates (including a certificate substantially in the form of Exhibit J) of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers and/or shareholders of each Loan 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) copies of the Organization Documents of each Loan Party certified party or is to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of party on the Closing Date 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 of the Loan Parties is validly 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 qualificationDate;
(v) a favorable an opinion of from Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx & Xxxxx LLP, New York counsel to the Loan Parties, addressed to substantially in the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may requestform of Exhibit H;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with attesting to the execution, delivery and performance by such Loan Party and the validity against such Loan Party Solvency of the Loan Documents Borrower and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to which it is a partythe Transactions, 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;from the chief financial officer of the Borrower; and
(vii) a certificate signed by a Responsible Officer if applicable under the laws of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) have been satisfied, (B) that there has been no event jurisdiction of incorporation or circumstance since the date organization of the Audited Financial Statements that has had relevant Loan Party, good standing certificates or could be reasonably expected certificates of status (to have, either individually or the extent such concept exists in the aggregaterelevant jurisdiction) from the jurisdiction of incorporation, a Material Adverse Effect; and (C) a calculation organization or formation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the each Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may requireParty.
(b) Any All fees and out-of-pocket expenses required to be paid hereunder or under the Fee Letters on or before and invoiced at least 3 Business Days prior to the Closing Date shall have been paid (provided such fees may in full or will be paid from on the proceeds Closing Date or out of such the initial Loan)Borrowing.
(c) Unless waived Prior to or substantially simultaneously with the initial Borrowing, (i) the Equity Contribution shall have been consummated and (ii) the Acquisition shall have been consummated in all material respects in accordance with the terms of the Purchase Agreement as in effect on May 12, 2011, without giving effect to any modifications, amendments, consents or waivers by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges thereto that are material and disbursements of counsel adverse to the Administrative Agent (directly to such counsel if requested Lenders or the Lead Arranger as reasonably determined by the Administrative Agent) to Lead Arranger, without the extent invoiced prior to or on consent of the Closing Date, plus Lead Arranger (such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or consent not to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agentunreasonably withheld, delayed or conditioned).
(d) The representations Administrative Agent and warranties of the Lead Arranger shall have received all documentation and other information about the Borrower and each other Loan Party contained the Guarantors as has been reasonably requested in Section 5 or any other Loan Document, or which are contained in any document furnished writing at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Loan, except least 10 days prior 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 Closing Date by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to or the proposed Closing Date specifying its objection theretoLead Arranger that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
Appears in 1 contract
Samples: Credit Agreement (Igate Corp)
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings initial Borrowing hereunder, and the obligation of the Issuing Lender to issue Letters of Credit hereunder on the Closing Date of its Loans hereunder Date, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orunless otherwise specified) and, except for the Notes, in sufficient copies for each Lender:
(i) A Revolving Note for each Lender that is a party hereto as of the Closing Date, in the case amount of certificates such Lender's Commitment and a Swingline Note for the Swingline Lender, in the amount of governmental officialsthe Swingline Commitment, each duly completed in accordance with the relevant provisions of SECTION 2.4 and executed by the Borrower;
(ii) the Subsidiary Guaranty, duly completed and executed by each Subsidiary Guarantor as shown on SCHEDULE 5.7;
(iii) the favorable opinions of McGuire, Woods, Battle & Bootxx, XXP, special counsel to the Borrower, in substantially the form of EXHIBIT F, addressed to the Agent and the Lenders and addressing such other matters as the Agent or any Lender may reasonably request.
(b) The Agent shall have received a recent date before certificate, signed by the Closing Date) and each president, the chief executive officer or the chief financial officer of the Borrower, in form and substance satisfactory to the Administrative Agent and each of the Lenders:
Agent, certifying that (i) executed counterparts all representations and warranties of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower contained in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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 Credit Documents are true and correct in all material respects as of the Closing Date, both immediately before and after giving effect to which such Loan Party the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (iii) both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, no Material Adverse Change has occurred since December 31, 1999, and there exists no event, condition or state of facts that could reasonably be expected to result in a party;
Material Adverse Change, and (iv) copies all conditions to the initial extensions of credit hereunder set forth in this Section and in Section 4.2 have been satisfied or waived as required hereunder.
(c) The Agent shall have received a certificate of the Organization Documents secretary or an assistant secretary of each Loan Party certified of the Borrower and its Subsidiary Guarantors, in form and substance satisfactory to be the Agent, certifying (i) that attached thereto is a true and complete copy of the articles or certificate of incorporation and all amendments thereto of the Borrower or such Subsidiary, as the case may be, certified as of a recent date by the appropriate Secretary of State (or comparable Governmental Authority Authority) of the state or other its jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 the same has not been amended since the date of such certification, (ii) that attached thereto is a true and 41 48 complete copy of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease bylaws of the Borrower or operation of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each LenderSubsidiary, as the case may be, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such matters concerning certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the Loan Parties and board of directors of the Loan Documents Borrower or such Subsidiary, as the Administrative Agent case may request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consentsbe, licenses and approvals required in connection with authorizing the execution, delivery and performance by such Loan Party of this Agreement and the validity against such Loan Party of the Loan other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of the Borrower or such consentsSubsidiary, licenses as the case may be, executing this Agreement or any of such other Credit Documents, and approvals attaching all such copies of the documents described above.
(d) The Agent shall have received (i) a certificate as of a recent date of the good standing of each of the Borrower and the Subsidiary Guarantors under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction or such similar certificate as is customarily issued by the relevant jurisdiction, and (ii) a certificate as of a recent date of the qualification of each of the Borrower and the Subsidiary Guarantors to conduct business as a foreign corporation in each jurisdiction where it is so qualified as of the Closing Date, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction.
(e) All legal matters, documentation, and corporate or other proceedings incident to the transactions contemplated hereby shall be satisfactory in form and substance to the Agent; all approvals, permits and consents of any Governmental Authorities or other Persons required in connection with the execution and delivery of this Agreement and the other Credit Documents and the consummation of the transactions contemplated hereby and thereby shall have been obtained, without the imposition of conditions that are not acceptable to the Agent, and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in full force and effecteffect and the Agent shall have received such copies thereof as it shall have requested; all applicable waiting periods shall have expired without any adverse action being taken by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before, and no order, injunction or decree shall have been entered by, any court or other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or (B) stating that no such consentsis otherwise related to or arises out of, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d)this Agreement, (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each any of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Credit Documents or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder consummation of the transactions contemplated hereby or under thereby, or that, in the Fee Letters on or before opinion of the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(if) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into certified reports from an independent search service satisfactory to it listing any judgment or tax lien filing or Uniform Commercial Code financing statement that (i) names the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and Borrower as debtor or (ii) a conforming amendment to names any Subsidiary Guarantor as debtor and the Senior Notes, each in form and substance reasonably results thereof shall be satisfactory to 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 (St Joe Co)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyCompany, 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 Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) a Note Notes executed by the Borrower Company in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the Company 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 partyDocuments;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other 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 each of the Loan Parties is validly existing, in good standing in its jurisdiction of organization, including certified copies of the Company’s Organization Documents, and qualified to engage in business in each jurisdiction where its ownership, lease or operation certificates of properties or the conduct of its business requires such qualificationgood standing and tax clearance certificates;
(v) a favorable opinion of Xxxxxxxx Xxxxxx, Xxxxxx Xxxxxxxx and Xxxx LLP& Xxxxxxxxx, special counsel to the Loan PartiesCompany, addressed to the Administrative Agent and each Lender, as to such matters concerning in the Loan Parties and the Loan Documents as the Administrative Agent may requestform set forth in Exhibit H;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower Company certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basiscurrent Debt Ratings; and
(xivii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower Company shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower Company and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, Closing Date shall be true and correct in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court on or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse EffectAugust 11, 2003.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 (Danaher Corp /De/)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedentprecedent on or before January 31, 2005:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible an 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) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender of the Lenders and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Authorized Officers of each Loan Party as the Administrative Agent may reasonably 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 this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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 do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxx X. Xxxxx, general counsel of the Loan Parties, and Xxxx White & Case LLP, special counsel to the Loan Parties, addressed as to the Administrative Agent matters set forth in Exhibit E and each Lender, as to 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 each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 an Authorized Officer of the Borrower Borrower, dated the date of this Agreement, certifying (A) that the conditions specified in Sections 4.01(d), on such date (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant after giving effect to the Loan Documents applicability of Article VI and Article VII) no Default or Event of Default has been obtained occurred and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrowercontinuing, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained set forth in Section 5 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 Article V is true and correct in all material respects on and as of such date, (C) the date current Debt Ratings, which shall be not less than BBB- by S&P and Baa3 by Xxxxx’x, and (D) that (a) all information (other than financial projections as referred to below) that has been made available to the Administrative Agent, the Arrangers or the Lenders by or on behalf of the Borrower or any of its representatives in connection with the negotiation of this Agreement and the commitments therefor is complete and correct in all material respects on such Loandate, except to the extent that such representations and warranties information specifically refer refers to an earlier date, in which case they it shall be true complete and correct in all material respects as of such earlier date, and except that for purposes does not contain any untrue statement of this Section 4.01, a material fact or omit to state a material fact necessary to make the representations and warranties statements contained in subsections (a) therein not misleading and (b) of Section 5.05 shall be deemed to refer all financial projections concerning the Borrower and its Subsidiaries or WellPoint and its Subsidiaries that have been made available to the most recent statements furnished pursuant Administrative Agent, the Arrangers or the Lenders by or on behalf of the Borrower or any of its representatives in connection with the negotiation of this Agreement and the commitments therefor have been prepared in good faith based upon reasonable assumptions (all such information and financial projections made available to clauses the Administrative Agent or to the Arrangers prior to May 27, 2004, the “Pre-Commitment Information”);
(vii) evidence that, after giving pro forma effect to the Merger (including the termination of the Existing Credit Agreements and the WellPoint Credit Agreements)
(a) the Total Debt to Capital Ratio is not more than 40% and (b)) Liquidity is not less than $500,000,000; and
(viii) such other documents as the Administrative Agent, respectively, of Section 6.01any Lender or their counsel may have reasonably requested.
(eb) No Default shall existThe payment by the Borrower of all accrued and unpaid fees, costs and expenses to the extent due and payable on or would result fromprior to the execution of this Agreement, such proposed Borrowing including, to the extent invoiced, reimbursement or from payment of all out-of-pocket expenses required to be reimbursed or paid by the application of the proceeds thereofBorrower hereunder.
(fc) The Borrower anticipated final terms and conditions of each aspect of the Merger, including, without limitation, all tax aspects thereof, shall be in compliance (on a Pro Forma Basis taking into account the applicable Loani) materially consistent with the financial covenants set forth description thereof received in Section 7.11writing as part of the Pre-Commitment Information or (ii) otherwise reasonably satisfactory to the Required Lenders.
(gd) There The Lenders shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance satisfied with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facilityamount, tenor, ranking and other terms and conditions of all debt financings that will comprise part of the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit Merger transaction and (ii) a conforming amendment the amount, terms, conditions and holders of all Debt and other material liabilities owing to third parties to be outstanding on and after the Senior Notes, each in form and substance reasonably satisfactory to the Administrative AgentClosing 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 Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its initial Loans hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed executed, where applicable, 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 Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) a Note executed by the Borrower Loan Parties in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties Party is validly existing, in good standing and qualified to engage in business in each the jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationorganization;
(v) a favorable opinion opinions of Xxxxxxxx Xxxxxx Xxxxxxxx Xxxx Xxxx & Xxxxx LLC and Xxxx LLP, internal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as in form and substance satisfactory to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may requestLenders;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower Company certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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 (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated current Debt Ratings; and (D) no consents, licenses and approvals are required in connection with the execution, delivery and performance by the Loan Parties on and the validity against each Loan Party of the Loan Documents to which it is a consolidated basisparty; and
(xivii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any The Existing Credit Agreement shall have been terminated and all obligations thereunder shall have been satisfied in full.
(c) Subject to the terms of the Fee Letter, any fees and expenses, including Attorney Costs of the Administrative Agent, required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 (Alberto Culver Co)
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings on the Closing Date of its Loans initial Borrowing hereunder is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orunless otherwise specified) and, except for the Notes, in the case of certificates of governmental officials, a recent date before the Closing Date) and sufficient copies for each in form and substance satisfactory to the Administrative Agent and each of the LendersLender:
(i) executed counterparts of this Agreement, sufficient in number A Term Note for distribution to the Administrative Agent, each Lender that is a party hereto as of the Closing Date, in the amount of such Lender's Term Loan Commitment; a Revolving Note for each Lender that is a party hereto as of the Closing Date, in the amount of such Lender's Revolving Credit Commitment; and a Swingline Note for the Swingline Lender, in the amount of the Swingline Commitment, in each case duly completed in accordance with the relevant provisions of Section 2.4 and executed by the Borrower;
(ii) a Note the Subsidiary Guaranty, duly completed and executed by each Material Subsidiary of the Borrower in favor and such other Subsidiaries of each Lender requesting a Notethe Borrower necessary to comply with Section 5.10;
(iii) the favorable opinions of Williams, Mullen, Christian & Xxxxxxx, P.C., special counsel to the Borrower, in substantially the form of Exhibit F, in each case addressed to the Administrative Agent and the Lenders and addressing such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party matters as the Administrative Agent or any Lender 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 partyreasonably request;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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;executed Acquisition Documents; and
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx 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 request;
(vi) a certificate of a Responsible Officer copies of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance opinion required to be maintained delivered pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing DateAcquisition Documents, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or which opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 Agent and shall be deemed accompanied in each case by a letter, unless such opinion is addressed 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 and the Lenders or expressly includes a reliance provision, from the counsel rendering such Lender prior opinion, stating that the Administrative Agent and the Lenders are entitled to the proposed Closing Date specifying its objection theretorely on such opinion as if it were addressed to them.
Appears in 1 contract
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings on the Closing Date of its Loans hereunder initial Borrowing hereunder, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly 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 each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party 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 is a partyCredit Documents;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Borrower is duly organized or formed, and that each of the Loan Parties Borrower is validly 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 do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxxx, Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP& Xxxxxxx, counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to such the matters concerning the Loan Parties Borrower and its Subsidiaries and the Loan Credit Documents as the Administrative Agent Required Lenders may reasonably request;
(vi) a certificate of a Responsible Officer of each Loan Party the Borrower either (A) attaching copies of all consents, licenses and approvals 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 partyCredit Documents, 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e3.2(a) and (fb) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017current Debt Ratings;
(viii) a duly completed Compliance Certificate as of for the last day of the fiscal quarter of the Borrower ended on June 30period ending March 31, 20172008, signed by a Responsible Officer of the Borrower; provided that the delivery of a Compliance Certificate (as defined in the Existing Credit Agreement) for such period shall be deemed to satisfy the requirements of this Section 3.1(a)(viii);
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed Subordination Agreement by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, Borrower’s Subsidiaries and (C) Affiliates to which the Consolidated Parties on a consolidated basisBorrower has any Indebtedness; and
(xix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.038.4, for purposes of determining compliance with the conditions specified in this Section 4.013.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any 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 Initial Borrowing. The occurrence of the Closing Date, the initial effectiveness of this Agreement and obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (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 of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly existing, in good standing and qualified to engage in business in each the jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationincorporation or organization;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLPXxXxxxx Long & Xxxxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as in form and substance satisfactory to such matters concerning the Loan Parties and Administrative Agent, covering enforceability of the Loan Documents as the Administrative Agent may requestand other matters to be agreed upon;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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) a the calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30December 31, 20172005;
(viiivii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June September 30, 20172005, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xiviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require; and
(ix) a Loan Notice, duly executed by the Borrower requesting a Borrowing on the Closing Date in an amount not to exceed sixty percent (60%) of Eligible Costs as of the Closing Date.
(b) Any fees required to be paid hereunder to the Administrative Agent, the Arrangers or under any other Lender (whether pursuant to the Fee Letters Letter or otherwise) on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs of the Administrative Agent 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party Parties contained in Section 5 Article V or any other Loan Document, or which are contained in any other document furnished at any time under or in connection herewith or therewiththis Agreement, shall be true and correct in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01Closing Date.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application exist and be continuing as of the proceeds thereofClosing Date.
(f) The There shall not have occurred a material adverse change since September 30, 2005 in the business, assets, operations, condition (financial or otherwise) or prospects of the Borrower shall be and its Consolidated Entities taken as a whole, or in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11facts and information regarding such entities as represented to date.
(g) There shall not have occurred exist any 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.
(h) The absence of any condition, circumstance, action, suit, investigation investigation, or proceeding proceeding, pending oror threatened, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority governmental authority that purports to affect the Borrower, its Consolidated Entities or any transaction contemplated hereby, or that could reasonably be expected to have a Material Adverse Effect on the Borrower and its Consolidated Entities or any transaction contemplated hereby or on the ability of any party to perform its obligations under the documents to be executed in connection herewith or in connection with any other Loan Document.
(h) The Borrower and its Consolidated Entities shall be in compliance with all existing financial obligations and Contractual Obligations, the failure to comply with could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received and approved the Terminus Project Budget, leasing reports and a Committed Loan Notice in accordance summary of all costs incurred through the end of January, 2006, together with such other materials related to the requirements hereofconstruction, ownership and/or future operation of the Terminus Project as may be reasonably requested by the Administrative Agent (including, to the extent required by the Administrative Agent and without limitation, plans, specifications, schedules, surveys, site plans, permits, construction and management contracts, architectural and engineering contracts and environmental site assessments related to the Terminus Project or such construction, ownership and/or operation).
(j) The Parent REIT Administrative Agent and Lenders shall have completed all due diligence with respect to the Terminus Project, the Borrower, its Consolidated Entities and its Unconsolidated Entities and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 theretoProperties owned thereby.
Appears in 1 contract
Samples: Construction Facility Credit Agreement (Cousins Properties Inc)
Conditions of Initial Borrowing. The obligation of each any Lender to advance make Loans in connection with the Borrowings initial Borrowing hereunder on the Closing Date of its Loans hereunder is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orunless otherwise specified):
(i) a Note for each Lender that is a party hereto as of the Closing Date, in the case amount of certificates such Lender's Commitment, each duly completed in accordance with the relevant provisions of governmental officialsSECTION 2.4 and executed by the Borrower;
(ii) the favorable opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the Borrower, and of Xxxxx & Co., special counsel to PXRE Ltd., in substantially the form of EXHIBITS E-1 and E-2.
(b) The Agent shall have received a recent date before certificate, signed by the Closing Date) and each president, the chief executive officer, an executive or senior vice president, or the chief financial officer of the Borrower, in form and substance satisfactory to the Administrative Agent and each of the Lenders:
Agent, certifying that (i) executed counterparts all representations and warranties of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower contained in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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 Credit Documents are true and correct as of the Closing Date, both immediately before and after giving effect to which the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (iii) there are no insurance regulatory proceedings pending or, to such Loan Party is individual's knowledge, threatened against any Insurance Subsidiary in any jurisdiction that, if adversely determined, would be reasonably likely to have a party;
Material Adverse Effect; (iv) copies both immediately before and after giving effect to the consummation of the Organization Documents transactions contemplated hereby, the making of each Loan Party certified the initial Loans hereunder and the application of the proceeds thereof, no Material Adverse Change has occurred since December 31, 1997, and there exists no event, condition or state of facts that could reasonably be expected to be result in a Material Adverse Change, and (v) all conditions to the initial extensions of credit hereunder set forth in this Section and in SECTION 3.2 have been satisfied or waived as required hereunder.
(c) The Agent shall have received a certificate of the secretary or an assistant secretary of the Borrower, in form and substance satisfactory to the Agent, certifying (i) that attached thereto is a true and complete copy of the articles or certificate of incorporation and all amendments thereto of the Borrower, certified as of a recent date by the appropriate Secretary of State (or comparable Governmental Authority Authority) of the state or other its jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation bylaws of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each LenderBorrower, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such matters concerning certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the Loan Parties and board of directors of the Loan Documents as the Administrative Agent may request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with Borrower authorizing the execution, delivery and performance by such Loan Party of this Agreement and the validity against such Loan Party of the Loan other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of the Borrower executing this Agreement or any of such consentsother Credit Documents, licenses and approvals attaching all such copies of the documents described above.
(d) The Agent shall have received (i) a certificate as of a recent date of the good standing of each of the Borrower and, to the extent available, its Material Subsidiaries under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction and (ii) as to each Material Insurance Subsidiary, to the extent available, a certificate of compliance as of a recent date, issued by the Insurance Regulatory Authority of its jurisdiction of legal domicile and any other jurisdiction in which such Insurance Subsidiary is reasonably likely to be commercially domiciled as defined under the laws and regulations of such jurisdiction.
(e) All legal matters, documentation, and corporate or other proceedings incident to the transactions contemplated hereby shall be satisfactory in form and substance to the Agent; all approvals, permits and consents of any Governmental Authorities (including, without limitation, all relevant Insurance Regulatory Authorities) or other Persons required in connection with the execution and delivery of this Agreement and the other Credit Documents and the consummation of the transactions contemplated hereby and thereby shall have been obtained, without the imposition of conditions that are not acceptable to the Agent, and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in full force and effecteffect and the Agent shall have received such copies thereof as it shall have requested; all applicable waiting periods shall have expired without any adverse action being taken by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before, and no order, injunction or decree shall have been entered by, any court or other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or (B) stating that no such consentsis otherwise related to or arises out of, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d)this Agreement, (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each any of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Credit Documents or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder consummation of the transactions contemplated hereby or under thereby, or that, in the Fee Letters on or before opinion of the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(if) The Administrative Agent shall have received a Committed Loan Notice in accordance with certified reports from an independent search service satisfactory to it listing any judgment or tax lien filing or Uniform Commercial Code financing statement that names the requirements hereof.
(j) The Parent REIT Borrower or any Material Subsidiary as debtor, and the Borrower results thereof shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably be satisfactory to 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 (Pxre Corp)
Conditions of Initial Borrowing. The obligation of each Lender to advance make the Borrowings on the Closing Date of its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the 56339040-2 53 49684497_9 Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note Term Notes executed by the Borrower in favor of each Lender requesting a NoteTerm Notes;
(iii) such certificates The certificate of resolutions incorporation (or other action, incumbency certificates and/or other certificates of Responsible Officers comparable document) of each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may require evidencing request to establish that such Person is duly organized and existing under the identitylaws of such jurisdiction), authority and capacity of each Responsible Officer together with an English translation 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(if appropriate);
(iv) copies To the extent such jurisdiction has the legal concept of a corporation being in good standing and a Governmental Authority in such jurisdiction issues any evidence of such good standing, a Certificate of Good Standing (or comparable certificate) for each Loan Party certified by the Secretary of State (or comparable public official) of its jurisdiction of organization (or, if any such Person is organized under the laws of any jurisdiction outside the United States, such other evidence as the Administrative Agent may request to establish that such Person is duly qualified to do business and in good standing under the laws of such jurisdiction), together with an English translation thereof (if appropriate);
(v) A certificate of the Organization Documents secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certified to be true and complete as of certifying (A) that attached thereto is a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as copy of the Closing Date by-laws (or comparable document) of such Person as in effect (or, if any such Person is organized under the laws of any jurisdiction outside the United States, any comparable document provided for in the respective corporate laws of that jurisdiction), (B) that attached thereto are true and correct copies of resolutions duly adopted by the board of directors of such Person (or other documents comparable enabling action) and certifications continuing in effect, which (1) authorize the execution, delivery and performance by such Person of the Loan Documents to be executed by such Person and the consummation of the transactions contemplated thereby and (2) designate the officers, directors and attorneys authorized so to execute, deliver and perform on behalf of such Person and (C) that there are no proceedings for the dissolution or liquidation of such Person, together with a certified English translation thereof (if appropriate);
(vi) A certificate (which may be combined with the certificate set forth in clause (v) above) of the secretary or an assistant secretary (or comparable officer) or a director of each Loan Party certifying the incumbency, signatures and authority of the officers, directors and attorneys of such Person authorized to execute, deliver and perform the Loan Documents to be executed by such Person, together with a certified English translation thereof (if appropriate); 56339040-2 54 49684497_9
(vii) Favorable written opinions from each of the following counsel for the Borrower, the Subsidiary Guarantors and FIL’s Subsidiaries, addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may reasonably require request and otherwise in form and substance satisfactory to evidence that each Loan Party is duly organized or formedthe Administrative Agent:
(A) Xxxxxx, Xxxxxx-Xxxxxxx, Colt & Mosle LLP, U.S. counsel for FIL and that each of the Loan Parties is validly 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 qualificationSubsidiaries;
(vB) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx Xxx & Partners, Malaysian (including Labuan) counsel for FIL and Xxxx LLPits Subsidiaries;
(C) Xxxxx & Xxxxxxxx, Singapore counsel for FIL and its Subsidiaries;
(D) Lexence N.V., Dutch counsel for FIL and its Subsidiaries;
(E) C & A Law, Mauritius counsel for FIL and its Subsidiaries;
(F) Wolf Xxxxxx, Hungarian counsel for FIL and its Subsidiaries; and
(G) Such other local counsel to the Loan Parties, addressed to the Administrative Agent FIL and each Lender, as to such matters concerning the Loan Parties and the Loan Documents its Subsidiaries as the Administrative Agent may request;reasonably request with respect to Subsidiary Guarantors.
(viviii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 stating 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;
(viiix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements March 31, 2013 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation the current Debt Ratings, and (D) pro forma calculations of the Consolidated Leverage Debt/EBITDA Ratio as of and the last day of the fiscal quarter of the Borrower ended on June 30Interest Coverage Ratio, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of based upon the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to ’s Financial Statements for the Loan Documents has been obtained and is in effectquarter ended June 28, 2013;
(x) a certificate executed by a Responsible Officer evidence that at least $400 million of existing indebtedness of the Borrower as or its Subsidiaries constituting one or more of the Closing DateAsian Term Loans, the U.S. Term Loans, and the term credit facility under the Existing FIL Credit Agreement have been prepaid; in form and substance each case such evidence being satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, ; and (C) the Consolidated Parties on a consolidated basis; and56339040-2 55 49684497_9
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative AgentAgent and subject to the Fee Letter, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, Closing Date shall be true and correct in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court on or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC FacilitySeptember 30, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent2013. 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: Term Loan Agreement (Flextronics International Ltd.)
Conditions of Initial Borrowing. The effectiveness of this Agreement and the obligation of each Lender to advance the Borrowings make its initial Loans hereunder on the Closing Date of its Loans hereunder is are 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 telecopies or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyOfficer, 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, sufficient in number for distribution to executed and delivered by the Administrative Agent, the Borrower, the Guarantor and each Lender and the Borrowerlisted on Schedule 2.01;
(ii) a Term A-1 Note executed by the Borrower in favor of each Term A-1 Lender requesting a Term A-1 Note, and a Term A-2 Note executed by the Borrower in favor of each Term A-2 Lender requesting a Term A-2 Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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 partyDocuments;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Credit Party is duly organized or formed, and that each of the Loan Parties Credit Party is validly existing, 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 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;
(vA) a favorable opinion opinions of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx & Xxxxxxx LLP, counsel to the Loan Credit Parties, addressed to the Administrative Agent and each LenderLender and (B) favorable opinions of in-house counsel to Xxxxxx, as addressed to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may requestand each Lender;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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 Effectcurrent Debt Ratings; and (C) a calculation of the Consolidated Leverage Ratio that, as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as date of the Closing Date, the Borrower is in form pro forma compliance with the financial covenants contained in Section 7.10 (and substance attaching the computations in reasonable detail satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis); and
(xivii) such evidence that, substantially concurrently with the Closing Date, all Indebtedness and other assurancesobligations under or in connection with the Existing Term Loan Agreement (including without limitation all unpaid principal, certificatesinterest, documentsfees, consents expenses and other amounts owing thereunder or opinions as the Administrative Agent or the Required Lenders reasonably may requirein connection therewith) will be repaid in full and all commitments to lend thereunder will be terminated.
(b) Any fees required to be paid hereunder or under by the Fee Letters Borrower on or before prior to the Closing Date pursuant to the Loan Documents and all expenses required to be reimbursed by the Borrower on or prior to the Closing Date pursuant to the Loan Documents shall have been paid paid, provided that invoices (provided such fees which invoice may be paid from in summary form) for such expenses have been presented to the proceeds Borrower a reasonable period of such initial Loan).
time (cand in any event not less than two (2) Unless Business Days) prior to the Closing Date (including, unless waived by the Administrative Agent, the Borrower shall have paid all reasonable reasonable, documented, out-of-pocket fees, charges and disbursements of counsel (including any local counsel) to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent)).
(c) Upon the reasonable request of any Lender made at least ten (10) days prior to the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti‑money‑laundering rules and regulations, including the Patriot Act, in each case at least five (5) days prior to the Closing Date.
(d) The representations and warranties of If the Borrower and each other Loan Party contained in Section 5 or any other Loan Documentqualifies as a “legal entity customer” under the Beneficial Ownership Regulation, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facilitydeliver to each Lender that so requests, the Bank of America Facilityin a form reasonably acceptable to such Lender, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment Beneficial Ownership Certification in relation to the Senior Notes, each in form and substance reasonably satisfactory Borrower at least five (5) days prior to the Administrative AgentClosing 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, (i) this Agreement and each other document to which it is a party or which it has reviewed or (ii) any 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 Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly 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 each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrowers;
(ii) executed counterparts of the Collateral Agreement and Security Agreement, sufficient in number for distribution to the Administrative Agent and the Custodian;
(iii) a Note executed by the Borrower Borrowers in favor of each Lender requesting a Note;
(iiiiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party 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 Borrower is a party;
(ivv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party Borrower is duly organized or formed, and that each of the Loan Parties Borrowers is validly existing, in good standing and qualified to engage in business in each jurisdiction where its such Borrowers’ 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;
(vvi) a favorable written opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, (addressed to the Administrative Agent and the Lenders and dated the Closing Date) of each Lenderof (i) the in-house general counsel for the Borrowers, as substantially in the form of Exhibit G-1 hereto (ii) Sidley Austin LLP, counsel for the Borrowers, substantially in the form of Exhibit G-2 hereto, and (iii) Hunton & Xxxxxxxx LLP, counsel for KKR Financial, substantially in the form of Exhibit G-3 hereto, and in each case, covering such other matters relating to such matters concerning the Loan Parties and Borrowers, this Agreement, the other Loan Documents or the transaction contemplated hereby or thereby as the Administrative Agent may shall reasonably request. The Borrowers hereby request such counsel to deliver such opinions.;
(vivii) a certificate of signed by a Responsible Officer of each Loan Party Borrower, in a form satisfactory to the Administrative Agent, either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party Borrower and the validity against such Loan Party 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;
(viiviii) a certificate signed by a Responsible Officer of each Borrower, in a form satisfactory to the Borrower Administrative Agent, certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (f4.02(b) have been satisfied, 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viiiix) a certificate signed by a Responsible Officer of each Borrower, in a form satisfactory to the Administrative Agent, stating that (i) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental instrumentality that purports to affect any Borrower or any Subsidiary thereof or any transaction contemplated by the Loan Documents, if such action, suit, investigation or proceeding could have a Material Adverse Effect, (ii) immediately prior to and following the transactions contemplated herein, each of the Borrowers shall be Solvent, and (iii) immediately after the execution of this Credit Agreement and the other Loan Documents, (A) no Default or Event of Default exists and (B) all representations and warranties contained herein and in the other Loan Documents are true and correct;
(x) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower KKR Financial ended on June 30March 31, 20172006, signed by a Responsible Officer of the BorrowerOfficer;
(ixxi) evidence that all insurance required to be maintained pursuant evidence, in form and substance reasonably satisfactory to the Loan Administrative Agent, that the Security Documents has been obtained and is are effective to create in effect;
(x) a certificate executed by a Responsible Officer favor of the Borrower Administrative Agent a legal, valid and enforceable first Lien and security interest in or on each item of Collateral in existence and owned or controlled by the Borrowers as of the Closing Date, including without limitation, the Existing Collateral. All filings, recordings, deliveries of instruments and other actions necessary or desirable in the opinion of the Administrative Agent to protect and preserve such security interests shall have been duly effected;
(xii) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, that all obligations of the Borrowers thereunder have been fulfilled or waived in full and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released. The Administrative Agent and the administrative agent under the Existing Facility shall have executed and delivered a payoff letter and other ancillary agreements, instruments and other documents in support thereof as may be mutually acceptable in form and substance to such agents (collectively the “Payoff Documents”); and such performance under the Payoff Documents as may be required by the terms thereof to be rendered prior to or on the Closing Date shall have been tendered by the appropriate party;
(xiii) a completed and fully executed Perfection Certificate from the Borrowers and the results of Uniform Commercial Code searches (and the equivalent thereof in all applicable foreign jurisdictions) with respect to the Collateral, indicating no Liens other than Liens permitted by Section 7.01(a) and otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(xiv) satisfactory financial statements of the type described in Section 6.01(a) for the 2005 fiscal year ended of KKR Financial and financial statements of the type described in Section 6.01(b) for the fiscal quarter of KKR Financial ended March 31, 2006;
(xv) evidence, in form and substance reasonably satisfactory to the Administrative Agent, regarding that all governmental and third party approvals necessary in connection with the Solvency financing contemplated by this Agreement and the continuing operations of each of Borrowers and each of their Subsidiaries shall have been obtained and be in full force and effect;
(Axvi) the Borrower, (B) each Administrative Agent shall notify the Borrowers and the Lenders of the other Loan PartiesEffective Date, and (C) the Consolidated Parties on a consolidated basissuch notice shall be conclusive and binding; and
(xixvii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the Swingline Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date under the Fee Letter or any other Loan Document shall have been paid (provided such fees may be paid from paid, and the proceeds of such initial Loan)Fee Letter Supplement shall have been executed and delivered by all parties thereto.
(c) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower Borrowers and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 1 contract
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) executed counterparts of the Security Agreement, duly executed by the Borrower, together with:
(A) copies of (1) Uniform Commercial Code financing statements in proper form for filing with the office of the District of Columbia Recorder of Deeds and the California Secretary of State and (2) Form No. 9 in proper form for filing with the Registrar of Companies of Bermuda, each covering the Collateral described in the Security Agreement,
(B) results of lien searches for filings in the jurisdictions referred to in Section 4.01(a)(iii)(A) that name the Borrower as debtor, and
(C) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed lien releases and UCC-3 termination statements relating to the Lien of the Revolving Credit Agreement with respect to the Contributed Containers for such certificates Borrowing date);
(iv) certified copies of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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;
(ivv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, formed and that each of the Loan Parties is validly existing, in good standing in Bermuda, including without limitation certificates of compliance issued by the Registrar of Companies of the Islands of Bermuda for each Loan Party, dated a date close to the date of this Agreement, stating that each Loan Party is duly incorporated and qualified to engage in business in each jurisdiction where its ownership, lease or operation good standing under the Companies Xxx 0000 of properties or the conduct Islands of its business requires such qualificationBermuda;
(vvi) a favorable opinion opinions of (1) Xxxxxxxx Xxxxxx & Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, (2) Xxxxxxx Xxxx & Xxxxxxx LLP, special Bermuda counsel to the Loan Parties, and (3) appropriate local counsel to the Loan Parties, in each case 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 request;
(vivii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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;
(viiviii) a certificate signed by a Responsible Officer of the Borrower and the Guarantor certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viiiix) a duly completed Compliance Certificate as of the last day of the respective fiscal quarter year of the Borrower and the Guarantor ended on June 30December 31, 20172013, signed by a Responsible Officer Officers of the BorrowerBorrower and the Guarantor;
(ixx) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and obtained, is in effecteffect and contains endorsements naming the Administrative Agent, on behalf of the Lenders, as a joint assured and/or co-loss payee, as the case may be, under such insurance;
(xxi) evidence that all filings, recordations and searches necessary or desirable to perfect the Lien on any property granted to or held by the Administrative Agent under any Loan Document shall have been completed, and that all related filing and recording fees and taxes shall have been duly paid;
(xii) a certificate executed Borrowing Base Certificate duly certified by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory relating to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basisinitial Borrowing; and
(xixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(bi) Any All fees required to be paid hereunder or under to the Fee Letters Administrative Agent and the Arrangers on or before the Closing Date shall have been paid and (provided such ii) all fees may required to be paid from to the proceeds of such initial Loan)Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties Administrative Agent shall have completed a due diligence investigation of the Guarantor, the Borrower and each other Loan Party contained their respective Subsidiaries in Section 5 or any other Loan Documentscope, or which are contained in any document furnished at any time under or in connection herewith or therewithand with results, satisfactory to the Administrative Agent and shall be true have been given such access to the management, records, books of account, contracts and correct in all material respects on and as properties of the date Guarantor, the Borrower and their respective Subsidiaries and shall have received such financial, business and other information regarding each of such Loan, except to the extent that such representations foregoing persons and warranties specifically refer to an earlier date, in which case businesses as they shall be true have requested, including, without limitation, information as to possible contingent liabilities, tax matters, collective bargaining agreements and correct in all material respects as of such earlier date, and except that for purposes of this Section 4.01other arrangements with employees, the representations annual (or other audited) financial statements of the Guarantor, the Borrower and warranties contained in subsections (a) their respective Subsidiaries for the fiscal years ended 2011, 2012 and (b) 2013, interim financial statements of Section 5.05 shall be deemed to refer to the Guarantor, the Borrower and their respective Subsidiaries dated the end of the most recent fiscal quarter for which financial statements furnished pursuant to clauses are available (a) and (b)or, respectivelyin the event the Administrative Agent’s due diligence review reveals material changes since such financial statements, as of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application a later date within 45 days of the proceeds thereof.
(f) The Closing Date); and no changes or developments shall have occurred, and no new or additional information, shall have been received or discovered by the Administrative Agent or the Lenders regarding the Guarantor, the Borrower shall be in compliance (on a Pro Forma Basis taking into account or their respective Subsidiaries or the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any event or circumstance since the date of the Audited Financial Statements transactions contemplated hereby after December 31, 2013 that has had or could be reasonably expected to have, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, and nothing shall have come to the attention of the Administrative Agent or the Lenders to lead them to believe that the transactions contemplated hereby will have a Material Adverse Effect.
(he) The absence of any condition, circumstance, No action, suit, investigation or proceeding is pending or, to the knowledge of the Borrower and/or GuarantorsGuarantor or the Borrower, threatened in any court or before any arbitrator or Governmental Authority governmental authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 theretoLender.
Appears in 1 contract
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings initial Borrowing hereunder, and the obligation of the Issuing Lender to issue Letters of Credit hereunder on the Closing Date of its Loans hereunder Date, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orunless otherwise specified) and, except for the Notes, in sufficient copies for each Lender:
(i) A Note for each Lender that is a party hereto as of the Closing Date, in the case amount of certificates such Lender's Commitment, each duly completed in accordance with the relevant provisions of governmental officialsSection 2.4 and executed by the Borrower;
(ii) the favorable opinion of Reed Smith Shaw & McClay LLP, spxxxxx xxxxsel xx xxe Borrower, in substantially the form of Exhibit E, addressed to the Agent and the Lenders and addressing such other matters as the Agent or any Lender may reasonably request.
(b) The Agent shall have received a recent date before certificate, signed by the Closing Date) and each president, the chief executive officer or the chief financial officer of the Borrower, in form and substance satisfactory to the Administrative Agent and each of the Lenders:
Agent, certifying that (i) executed counterparts all representations and warranties of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower contained in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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 Credit Documents are true and correct as of the Closing Date, both immediately before and after giving effect to which the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, the making of the initial Loans hereunder and the application of the proceeds thereof, (iii) there are no insurance regulatory proceedings pending or, to such Loan Party is individual's knowledge, threatened against any of the Insurance Subsidiaries in any jurisdiction that, if adversely determined, would be reasonably likely to have a party;
Material Adverse Effect; (iv) copies both immediately before and after giving effect to the consummation of the Organization Documents transactions contemplated hereby, the making of each Loan Party certified the initial Loans hereunder and the application of the proceeds thereof, no Material Adverse Change has occurred since December 31, 1997, and there exists no event, condition or state of facts that could reasonably be expected to be result in a Material Adverse Change, and (v) all conditions to the initial extensions of credit hereunder set forth in this Section and in Section 4.2 have been satisfied or waived as required hereunder.
(c) The Agent shall have received a certificate of the secretary or an assistant secretary of the Borrower, in form and substance satisfactory to the Agent, certifying (i) that attached thereto is a true and complete copy of the articles or certificate of incorporation and all amendments thereto of the Borrower, certified as of a recent date by the appropriate Secretary of State (or comparable Governmental Authority Authority) of the state or other its jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation bylaws of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each LenderBorrower, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such matters concerning certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the Loan Parties and board of directors of the Loan Documents as the Administrative Agent may request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with Borrower authorizing the execution, delivery and performance by such Loan Party of this Agreement and the validity against such Loan Party of the Loan other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of the Borrower executing this Agreement or any of such consentsother Credit Documents, licenses and approvals attaching all such copies of the documents described above.
(d) The Agent shall have received (i) a certificate as of a recent date of the good standing of each of the Borrower and its Material Subsidiaries under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction; and (ii) as to each Material Insurance Subsidiary, a certificate of compliance as of a recent date, issued by the Insurance Regulatory Authority of its jurisdiction of legal domicile and any other jurisdiction in which such Insurance Subsidiary is reasonably likely to be commercially domiciled as defined under the laws and regulations of such jurisdiction.
(e) All legal matters, documentation, and corporate or other proceedings incident to the transactions contemplated hereby shall be satisfactory in form and substance to the Agent; all approvals, permits and consents of any Governmental Authorities (including, without limitation, all relevant Insurance Regulatory Authorities) or other Persons required in connection with the execution and delivery of this Agreement and the other Credit Documents and the consummation of the transactions contemplated hereby and thereby shall have been obtained, without the imposition of conditions that are not acceptable to the Agent, and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in full force and effecteffect and the Agent shall have received such copies thereof as it shall have requested; all applicable waiting periods shall have expired without any adverse action being taken by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before, and no order, injunction or decree shall have been entered by, any court or other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or (B) stating that no such consentsis otherwise related to or arises out of, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d)this Agreement, (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each any of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Credit Documents or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder consummation of the transactions contemplated hereby or under thereby, or that, in the Fee Letters on or before opinion of the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(if) The Administrative Agent shall have received a Committed Loan Notice in accordance with certified reports from an independent search service satisfactory to it listing any judgment or tax lien filing or Uniform Commercial Code financing statement that names the requirements hereof.
(j) The Parent REIT Borrower or any Material Subsidiary as debtor, and the Borrower results thereof shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably be satisfactory to 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 Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings on the Closing Date of its Loans initial Borrowing hereunder is subject to the satisfaction of the following conditions precedent:
(a) The the Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orunless otherwise specified) and, except for the Notes, in the case of certificates of governmental officials, a recent date before the Closing Date) and sufficient copies for each in form and substance satisfactory to the Administrative Agent and each of the LendersLender:
(i) executed counterparts A Note for each Lender that is a party hereto as of this Agreementthe Closing Date, sufficient in number for distribution to the Administrative Agentamount of such Lender’s Commitment, each Lender duly completed in accordance with the relevant provisions of Section 2.4 and executed by the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx 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 request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017certificate, signed by a Responsible Officer the chief executive officer, chief financial officer, treasurer or comptroller of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of certifying that (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 or any this Agreement and the other Loan Document, or which Credit Documents are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Loan, Closing Date (except to the extent that such representations and warranties specifically refer which relate solely to an a specific earlier date, in which case they shall be have been true and correct in all material respects as of such earlier date), both immediately before and except that for purposes after giving effect to the consummation of this Section 4.01the transactions contemplated hereby, the representations making of the initial Loans hereunder and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
, (fB) The Borrower shall be in compliance (on a Pro Forma Basis taking into account no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the applicable Loan) with initial Loans hereunder and the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any event or circumstance since the date application of the Audited Financial Statements that has had or could be reasonably expected to haveproceeds thereof, either individually or in the aggregate, a Material Adverse Effect.
(hC) The absence of any condition, circumstance, action, suit, investigation or proceeding there are no insurance regulatory proceedings pending or, to the knowledge of the Borrower and/or Guarantorssuch individual’s knowledge, threatened against any Insurance Subsidiary in any court or before any arbitrator or Governmental Authority jurisdiction that could would reasonably be expected to have a Material Adverse Effect., and (D) both immediately before and after giving effect to the consummation of the transactions contemplated by this Agreement, no Material Adverse Change has occurred since December 31, 2002 and there exists no event, condition or state of facts that would reasonably be expected to result in a Material Adverse Change;
(iii) a certificate of the secretary or an assistant secretary of the Borrower, in form and substance satisfactory to the Administrative Agent, certifying (A) that attached thereto is a true and complete copy of the certificate of incorporation and all amendments thereto of the Borrower, certified as of a recent date by the Secretary of State of Delaware and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws of the Borrower, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors of the Borrower authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of the Borrower executing this Agreement or any of the other Credit Documents, and attaching all such copies of the documents described above;
(iv) a copy of the investment policy approved by the board of directors for each of the Insurance Subsidiaries and the Borrower; and
(v) the favorable opinions of (i) Mayer, Brown, Xxxx & Maw LLP, special New York counsel to the Borrower, and (ii) Xxxxxx X. Xxxxxxx, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(b) The Administrative Agent shall have received a certificate as of a recent date of the good standing of each of (i) the Borrower, (ii) Everest Re, (iii) Everest Indemnity, (iv) Everest National and (v) Everest Security, under the laws of their respective jurisdictions of organization, from the Secretary of State or Insurance Regulatory Authorities (or comparable Governmental Authority) of such jurisdiction;
(c) All legal, tax, accounting, business and other matters relating to the Borrower and its Subsidiaries, documentation and corporate or other proceedings incident to the transactions contemplated hereby shall be reasonably acceptable to the Administrative Agent; all approvals, permits and consents of any Governmental Authorities (including, without limitation, all relevant Insurance Regulatory Authorities) or other Persons required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been obtained (without the imposition of conditions that are not reasonably acceptable to the Administrative Agent), and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in full force and effect and the Administrative Agent shall have received such copies thereof as it shall have requested; all applicable waiting periods shall have expired without any adverse action being taken by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before, and no order, injunction or decree shall have been entered by, any court or other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or that is otherwise related to or arises out of, this Agreement, any of the other Credit Documents or the consummation of the transactions contemplated hereby or thereby, or that would reasonably be expected to have a Material Adverse Effect;
(d) Since December 31, 2002, both immediately before and after giving effect to the consummation of the transactions contemplated by this Agreement, there shall not have occurred any Material Adverse Change or any event, condition or state of facts that could reasonably be expected to result in a Material Adverse Change;
(e) The Borrower shall have paid (i) to the Arranger, the unpaid balance of the fees described in paragraphs (1) and (2) of the Fee Letter, (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in paragraph (3) of the Fee Letter, and (iii) all other fees and expenses of the Administrative Agent and the Lenders required hereunder or under any other Credit Document to be paid on or prior to the Closing Date (including fees and expenses of counsel) in connection with this Agreement and the transactions contemplated hereby;
(f) The Administrative Agent shall have received a Covenant Compliance Worksheet, duly completed and certified by the chief financial officer, treasurer or comptroller of Borrower and in form and substance satisfactory to the Administrative Agent, demonstrating Borrower’s compliance with the financial covenants set forth in Sections 6.1 through 6.3, determined on a pro forma basis as of June 30, 2003 after giving effect to the making of the initial Loans hereunder and the consummation of the transactions contemplated hereby;
(g) The Lenders shall have received the Projections as described in Section 4.11(b) in form and substance satisfactory to the Administrative Agent;
(h) The Administrative Agent shall have received evidence satisfactory to it that concurrently with the making of the initial Loans hereunder, (x) all principal, interest and other amounts outstanding with respect to the Terminating Senior Indebtedness shall be repaid and satisfied in full and (y) all commitments to extend credit under the agreements and instruments relating thereto shall be terminated;
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with satisfactory confirmation from A.M. Best Company that the requirements hereof.current rating of each Material Insurance Subsidiary is “A-” or better;
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 (i) an Account Designation Letter, together with written instructions from an Authorized Officer of the Borrower, including wire transfer information, directing the payment of the proceeds of the initial Loans to be made hereunder and [(ii) a LIBOR borrowing indemnity letter][Discuss borrowing at closing]; and
(k) The Administrative Agent shall have received such Lender prior to other documents, certificates, opinions and instruments in connection with the proposed Closing Date specifying its objection theretotransactions contemplated hereby as it shall have reasonably requested.
Appears in 1 contract
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly 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 each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a NoteNote at least two Business Days prior to the Closing Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the 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 the Borrower is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Borrower is duly organized or formed, and that each of the Loan Parties Borrower is validly existing, existing and in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationorganization;
(vi) a favorable an opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, in-house counsel to for the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to such matters concerning in the Loan Parties form of Exhibit E-1 and (ii) an opinion of Wachtell, Lipton, Rosen, & Kxxx, special counsel for the Loan Documents as Borrower, in the Administrative Agent may requestform of Exhibit E-2;
(vi) a certificate of signed by a Responsible Officer of each Loan Party either the Borrower certifying that there has been no event or circumstance since December 31, 2006, that has had or could be reasonably expected to have a material adverse effect (Aas defined in the Acquisition Agreement) attaching copies of all consentson the Target and its Subsidiaries, licenses and approvals 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 taken as 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 requiredwhole;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) as to the accuracy and completeness of the Acquisition Documents, copies of which shall be attached thereto, and certifying that the conditions specified in Sections 4.01(d)Acquisition shall have been, (e) and (f) have been satisfiedor substantially simultaneously with the effectiveness of this Agreement shall be, (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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017consummated;
(viii) a duly completed Compliance Certificate as satisfactory evidence that the Existing Credit Facilities shall have been, or will be substantially contemporaneously with the effectiveness of the last day of the fiscal quarter of the Borrower ended on June 30this Agreement, 2017, signed by a Responsible Officer of the Borrower;terminated and repaid in full; and
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions documents as the Administrative Agent or the Required Lenders reasonably may require.
(b) The Acquisition shall have been, or substantially simultaneously with the effectiveness of this Agreement shall be, consummated on or before November 30, 2007 in accordance with the Acquisition Agreement. The Acquisition Documents shall be reasonably satisfactory to the Arrangers, it being understood that the Acquisition Agreement dated as of February 19, 2007, as amended by Amendment No. 1 dated as of April 9, 2007, is satisfactory to the Arrangers. All conditions precedent to the consummation of the Acquisition shall have been satisfied or waived (with the prior consent of the Arrangers if the Arrangers reasonably determine such waiver is materially adverse to the Lenders).
(c) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(cd) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 1 contract
Samples: 364 Day Bridge Credit Agreement (Vulcan Materials CO)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of make its Loans initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note executed by the Borrower in favor of each Lender requesting such a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties Party is validly 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 do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, Parties acceptable to Agent addressed to the Administrative Agent and each Lender, as to such the matters set forth concerning the Loan Parties and the Loan Documents as the Administrative Agent may requestin form and substance satisfactory to Agent;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e4.02(a) and (fb) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xix) a certificate executed duly completed Compliance Certificate as of the last day of the fiscal quarter of Borrower most recently ended prior to the Closing Date, signed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, Closing Date shall be true and correct in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court on or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC FacilityFebruary 1, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent2008. Without limiting the generality of the provisions of the last paragraph sentence of Section 9.039.03(d), 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 Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings initial Borrowing hereunder, and the obligation of the Issuing Lender to issue Letters of Credit hereunder on the Closing Date of its Loans hereunder Date, is subject to the satisfaction or written waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies the Closing Date (followed promptly by originals) unless otherwise specified):
(i) from each Credit Party party thereto a counterpart signed by such Credit Party (or written evidence satisfactory to the Administrative Agent (which may include a copy transmitted by facsimile or other electronic method) that such party has signed a counterpart) of (A) this Agreement and (B) the Security Agreement;
(ii) subject to the last paragraph of this Section 4.01, any certificates evidencing the Capital Stock required to be pledged pursuant to the Security Agreement as of the Closing Date, together with undated stock powers or similar instruments of transfer, duly executed in blank; and
(iii) a customary written opinion of (i) Weil, Gotshal and Xxxxxx LLP, (ii) Xxxxx Xxxx, L.L.S.C., (iii) Xxxxx & Xxxxxxxxx LLP, each properly as special counsel to the applicable Credit Parties.
(b) The Administrative Agent shall have received a certificate dated the Closing Date and 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:
Credit Parties, certifying (iA)(x) executed counterparts that attached thereto is a true and complete copy of this Agreementthe articles or certificate of incorporation or other comparable organizational documents of such Credit Party, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed certified by the Borrower in favor relevant authority of each Lender requesting the jurisdiction of organization of such Credit Party and a Note;
true and complete copy of the bylaws, operating or comparable governing document of such Credit Party and (iiiy) that such certificates documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and (B)(x) that attached thereto is a true and complete copy of resolutions or other actionwritten consents of its shareholders or Board of Directors, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent case may require evidencing the identitybe, 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx 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 request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with authorizing the execution, delivery and performance by such Loan Party of this Agreement and the validity against such Loan Party of the Loan other Credit Documents to which it is a party, and that such consentsresolutions or written consents have not been modified, licenses rescinded or amended and approvals shall be are in full force and effecteffect without amendment, modification or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Partiesrescission, and (Cy) as to the Consolidated Parties on incumbency and genuineness of the signature of the officers, directors, managers or other authorized signatories of each Credit Party, executing this Agreement and the other Credit Documents to which it is a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan)party.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice certificate as of a recent date of the good standing (or equivalent) of each of the Credit Parties under the laws of its jurisdiction of organization from the relevant authority of its jurisdiction of organization.
(d) The Administrative Agent shall have received certified reports from an independent search service reasonably satisfactory to it listing any judgment or tax lien filing or UCC financing statement that names any Credit Party as debtor in accordance any of the jurisdictions listed beneath its name on the Perfection Certificate.
(e) Each UCC financing statement and, subject to Section 6.12, each document required by any Security Document or any applicable Requirements of Law to be filed, registered or recorded in order to create in favor the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral required to be delivered pursuant to each Security Document, shall be in proper form for filing, registration or recording.
(f) The Administrative Agent shall have received certificates of insurance evidencing the insurance coverages described in Section 6.06.
(g) The Borrower shall have paid all fees and expenses of the Lenders, the Administrative Agent and the Arrangers required to be paid on the Closing Date pursuant to the Engagement Letter and the Agency Fee Letter, to the extent invoiced at least three Business Days prior to the Closing Date (or such later date as Holdings may reasonably agree), which amounts may be offset against the proceeds of the Loans.
(h) The Administrative Agent shall have received (i) the audited consolidated balance sheets of Holdings as of December 31, 2013 and audited consolidated statements of operations, comprehensive income (loss), stockholders’ equity (deficit) and cash flows of Holdings for the year ended December 31, 2013, (ii) the unaudited consolidated balance sheets of Holdings as of June 29, 2014 and unaudited consolidated statements of operations, comprehensive income (loss), stockholders’ equity (deficit) and cash flows of Holdings for the six month periods ended June 29, 2014 and (iii) a pro forma consolidated balance sheet and related statements of income of Holdings as of and for the 12 month period ending on June 29, 2014 prepared after giving effect to the Transactions as if the Transactions occurred on such date.
(i) Prior to or substantially concurrently with the requirements hereofinitial funding of the Loans hereunder, and the issuance of the Senior Notes in an aggregate principal amount equal to $600,000,000, the Refinancing shall have been consummated.
(j) The Parent REIT and Administrative Agent shall have received the Solvency Certificate from the chief financial officer of the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment certifying as to the Senior Notes, each in form and substance reasonably satisfactory matters set forth therein.
(k) At least 3 Business Days prior to the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.03Closing Date, 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 all information with respect to the Credit Parties reasonably requested by it in writing at least 10 Business Days prior to the proposed Closing Date specifying its objection theretounder applicable “know-your-customer” and anti-money laundering rules and regulations, including, without limitation, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “PATRIOT Act”).
Appears in 1 contract
Samples: Credit Agreement (Metaldyne Performance Group Inc.)
Conditions of Initial Borrowing. The obligation of each Lender to advance the Borrowings on the Closing Date of its Loans hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx 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 request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One US Bank Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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.and
Appears in 1 contract
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings on the Closing Date of its Loans initial Borrowing hereunder is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each of which shall be originals or telecopies or in an electronic format acceptable to the Administrative Agent (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan applicable Credit Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before prior to the Closing Date) and each in a form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient Agreement in such number for distribution of copies as the Administrative Agent shall have required;
(ii) to the Administrative Agentextent requested by any Lender in accordance with Section 2.4(d), a Note or Notes for such Lender, in each Lender case duly completed in accordance with the provisions of Section 2.4(d) and executed by the Borrower;
(iiiii) a Note the Guaranty, duly completed and executed by each Subsidiary (other than any Foreign Subsidiary to the Borrower in favor of each Lender requesting a Noteextent (and for as long as) doing so would cause adverse tax or regulatory consequences to the Borrower);
(iiiiv) such certificates of resolutions or other actionif any LIBOR Loans are to be borrowed prior to the 3rd Business Day after the Closing Date, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing shall have received, 3 days prior to the identitydate such LIBOR Loans are to be borrowed, authority a pre-funding LIBOR indemnity letter from the Borrower and capacity a completed Notice of each Responsible Borrowing;
(v) a certificate, signed by an Authorized Officer thereof authorized to act as a Responsible Officer of the Borrower, certifying that (i) all representations and warranties of the Credit Parties contained in connection with this Agreement and the other Loan Credit Documents qualified as to which such Loan Party is a party;
(iv) copies of the Organization Documents of each Loan Party certified to materiality shall be true and complete correct and those not so qualified shall be true and correct in all material respects, in each case as of the Closing Date, both immediately before and after giving effect to the consummation of the NYBOT Merger and the other Transactions, the making of the initial Loans and the application of the proceeds thereof (except to the extent any such representation or warranty is expressly stated to have been made as of a recent date by the appropriate Governmental Authority of the state specific date, in which case such representation or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to warranty shall be true and correct as of such date), (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the Closing Date consummation of the NYBOT Merger and such the other documents Transactions, the making of the initial Loans and certifications as the Administrative Agent may reasonably require application of the proceeds thereof, (iii) both immediately before and after giving effect to evidence that each Loan Party is duly organized or formedthe consummation of the NYBOT Merger and the other Transactions, the making of the initial Loans and the application of the proceeds thereof, no Material Adverse Effect has occurred since December 31, 2005, and there exists no event, condition or state of facts that each of the Loan Parties is validly existingcould reasonably be expected to result in a Material Adverse Effect, 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;
(viv) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel all conditions to the Loan Parties, addressed to the Administrative Agent initial extensions of credit hereunder set forth in this Section 3.1 and each Lender, in Section 3.2 have been satisfied or waived as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may requestrequired hereunder;
(vi) a certificate of a Responsible Officer the secretary or an assistant secretary of each Loan Credit Party either executing any Credit Documents as of the Closing Date, certifying (Ai) attaching copies that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all consentsamendments thereto of such Credit Party, licenses certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and approvals required that the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of such Credit Party, as then in connection with effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of such Credit Party, authorizing the execution, delivery and performance by such Loan Party of this Agreement and the validity against such Loan Party of the Loan other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of such consentsCredit Party executing this Agreement or any of such other Credit Documents, licenses and approvals shall be in full force and effect, or (B) stating that no attaching all such consents, licenses or approvals are so requiredcopies of the documents described above;
(vii) a certificate signed by as of a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) have been satisfied, (B) that there has been no event or circumstance since the recent 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) a calculation good standing of the Consolidated Leverage Ratio each Credit Party executing any Credit Documents as of the last day Closing Date, under the laws of its jurisdiction of organization, from the fiscal quarter Secretary of the Borrower ended on June 30, 2017State (or comparable Governmental Authority) of such jurisdiction;
(viii) a duly completed Compliance Financial Conditions Certificate as of executed by the last day of the fiscal quarter chief financial officer of the Borrower ended on June 30, 2017, signed by a Responsible Officer containing the copies of the Borrower;
(ix) evidence that all insurance required financial statements referred to be maintained pursuant to the Loan Documents has been obtained in Section 4.11 and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower confirming that, as of the Closing Date, in form and substance satisfactory after giving effect to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each consummation of the other Loan PartiesTransactions, the Borrower and (C) the Consolidated Parties its Subsidiaries on a consolidated basisbasis are solvent; and
(xiix) such copies of the financial statements referred to in Section 4.11(a) of NYBOT and its Subsidiaries.
(b) The Administrative Agent shall be satisfied with the corporate and capital structure and management of the Borrower and its Subsidiaries after giving effect to the Transactions, and all legal, tax, accounting, business and other assurancesmatters relating to the Transactions or to the Borrower and its Subsidiaries after giving effect thereto.
(c) All approvals, certificatespermits and consents of any Governmental Authorities, documentsany Self-Regulatory Organizations, consents or opinions as other Persons required in connection the consummation of any of the Transactions shall have been obtained, without the imposition of conditions that are materially adverse to the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder Lenders; all applicable waiting periods shall have expired without any adverse action being taken or under the Fee Letters on threatened by any Governmental Authority or before the Closing Date Self-Regulatory Organization having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agentinstituted, the Borrower threatened or proposed before, and no order, injunction or decree shall have paid all reasonable feesbeen entered by, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or other Governmental Authority or any Self-Regulatory Organization, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or to impose materially adverse conditions upon, this Agreement, any of the other Credit Documents or any of the other Transaction Documents, or the consummation of the NYBOT Merger or any of the other Transactions or that could reasonably be expected to have a Material Adverse Effect.
(d) The Lenders shall have reviewed, and be satisfied with, the final structure, terms and conditions relating to the NYBOT Merger, and the NYBOT Merger shall be consummated concurrently with the initial Borrowing in accordance with the Merger Documents, without any amendment or waiver of any material condition or other provision thereof that is materially adverse to the Lenders except as approved by the Administrative Agent.
(e) Concurrently with the making of the initial Loans hereunder, (i) all principal, interest and other amounts outstanding under the Borrower’s existing bilateral revolving credit facility with Wachovia (the “Existing Bilateral Facility”), shall be repaid and satisfied in full and all guarantees by the Credit Parties relating thereto extinguished, and (ii) all commitments to extend credit under the agreements and instruments relating to the Existing Bilateral Facility shall be terminated; and the Administrative Agent shall have received evidence of the foregoing satisfactory to it.
(f) Since December 31, 2005, both immediately before and after giving effect to the consummation of the Transactions, there shall not have occurred (i) a Material Adverse Effect or (ii) any event, condition or state of facts that could reasonably be expected to have a Material Adverse Effect.
(g) The Borrower shall have paid (i) to the Arrangers, the fees required under their respective Fee Letter to be paid to them on the Closing Date, in the amounts due and payable on the Closing Date as required by the terms thereof, (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in its Fee Letter, and (iii) all other fees and reasonable expenses of the Arrangers, the Administrative Agent and the Lenders required hereunder or under any other Credit Document to be paid on or prior to the Closing Date (including reasonable fees and expenses of counsel) in connection with this Agreement, the other Credit Documents and the Transactions.
(h) The Administrative Agent shall be satisfied that, on a Pro Forma Basis after giving effect to the consummation of the NYBOT Merger, the repayment of the Existing Bilateral Facility, the initial extensions of credit made under this Agreement, the payment of transaction fees and expenses related to the foregoing, and the consummation of the other Transactions, all as if such transactions had occurred on the date of the Pro Forma Balance Sheet, (i) the Borrower is in compliance with the financial covenants set forth in Article VI as of September 30, 2006 (assuming such covenants were applicable to the Borrower at such date at the required levels of such covenants at their respective first measurement dates) and (ii) the Unutilized Revolving Credit Commitments are not less than $200,000,000; and the Administrative Agent shall have received a certificate of a Financial Officer of the Borrower as to the foregoing, together with a completed Covenant Compliance Worksheet and other supporting documentation, all in form and substance satisfactory to the Administrative Agent.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance an Account Designation Letter, together with written instructions from an Authorized Officer of the requirements hereofBorrower, including wire transfer information, directing the payment of the proceeds of the initial Loans to be made hereunder.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank Each of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to 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 and each Lender shall have received notice from such Lender prior other documents, certificates, opinions and instruments in connection with the transactions contemplated hereby as it shall have reasonably requested (including but not limited to legal opinions of counsel to the proposed Closing Date specifying Borrower and its objection theretosubsidiaries and, if reasonably available, reliance letters with respect to opinions delivered in connection with the NYBOT Merger).
Appears in 1 contract
Conditions of Initial Borrowing. The obligation of each Lender to advance make ------------------------------- Loans in connection with the Borrowings initial Borrowing hereunder, and the obligation of the Issuing Lender to issue Letters of Credit hereunder on the Closing Date of its Loans hereunder Date, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies the Closing Date (followed promptly by originals) unless otherwise specified) and, except for the Notes and any certificates or instruments required to be delivered under the Borrower Pledge and Security Agreement and the Parent Pledge and Security Agreement, in sufficient copies for each properly Lender:
(i) (A) a Term Note for each Term Loan Lender that is a party hereto as of the Closing Date, in the amount of such Lender's Term Loan Commitment, (B) a Revolving Credit Note for each Revolving Credit Lender that is a party hereto as of the Closing Date, in the amount of such Lender's Revolving Credit Commitment, and (C) a Swingline Note for the Swingline Lender, in the amount of the Swingline Commitment, in each case duly completed in accordance with the relevant provisions of SECTION 2.4 and executed by a Responsible Officer the Borrower;
(ii) the Parent Guaranty, duly completed and executed by Parent;
(iii) the Borrower Pledge and Security Agreement, duly completed and executed by the Borrower, and the Parent Pledge and Security Agreement, duly completed and executed by Parent, in each case together with any certificates evidencing the interests being pledged thereunder as of the signing Loan Party, each dated the Closing Date and undated assignments separate from certificate for any such certificate, duly executed in blank, and any promissory notes being pledged thereunder, duly endorsed in blank (or, in the case of certificates of governmental officialsuncertificated interests, a recent date before the Closing Date) appropriately completed and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) duly executed counterparts of this Agreement, sufficient in number control agreements with instructions for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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;registration thereof); and
(iv) copies the favorable opinions of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization(A) Xxxxxxxx & Xxxxx, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 of the Loan Parties is validly 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;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, special counsel to the Loan Credit Parties, in substantially the form of EXHIBIT I-1, and (B) Xxxxxx Xxxxxx White & XxXxxxxxx, special California counsel to the Credit Parties, in substantially the form of EXHIBIT I-2, in each case addressed to the Administrative Agent and each Lender, as to the Lenders and addressing such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent or any Lender may reasonably request;.
(vib) The Administrative Agent shall have received a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals 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 Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017certificate, signed by a Responsible Officer the president, the chief executive officer or the chief financial officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing DateParent, in form and substance satisfactory to the Administrative Agent, regarding certifying that (i) all representations and warranties of Parent and the Solvency Borrower contained in this Agreement and the other Credit Documents are true and correct as of (A) the BorrowerClosing Date, both immediately before and after giving effect to the consummation of the Transactions, the initial Loans hereunder and the application of the proceeds thereof, (Bii) each no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the other Loan PartiesTransactions, the initial Loans hereunder and the application of the proceeds thereof, and (Ciii) both immediately before and after giving effect to the Consolidated Parties on a consolidated basis; and
(xi) such other assurancesconsummation of the Transactions, certificates, documents, consents or opinions as the Administrative Agent or initial Loans hereunder and the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from application of the proceeds thereof, no Material Adverse Change has occurred since June 30, 1997, and there exists no event, condition or state of such initial Loan)facts that could reasonably be expected to result in a Material Adverse Change.
(c) Unless waived by The Administrative Agent shall have received a certificate of the secretary or an assistant secretary of the Borrower, in form and substance satisfactory to the Administrative Agent, certifying (i) that attached thereto is a true and complete copy of the Borrower shall have paid articles of organization and all reasonable feesamendments thereto of the Borrower, charges and disbursements certified as of counsel to the Administrative Agent (directly to such counsel if requested a recent date by the Administrative Agent) to Secretary of State of the extent invoiced prior to or on State of Delaware, and that the Closing Date, plus such additional amounts same has not been amended since the date of such feescertification, charges and disbursements as shall constitute its reasonable estimate (ii) that attached thereto is a true and complete copy 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 limited liability company operating agreement of accounts between the Borrower and all amendments thereto, as then in effect, and as to the Administrative Agent)incumbency and genuineness of the signature of each officer of the Borrower executing this Agreement or any of the other Credit Documents on behalf of the Borrower, and attaching all such copies of the documents described above.
(d) The representations and warranties Administrative Agent shall have received a certificate of the Borrower secretary or an assistant secretary of Parent, in form and each other Loan Party contained in Section 5 or any other Loan Documentsubstance satisfactory to the Administrative Agent, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be certifying (i) that attached thereto is a true and correct in complete copy of the certificate of incorporation and all material respects on and amendments thereto of Parent, certified as of a recent date by the Secretary of State of the State of Delaware, and that the same has not been amended since the date of such Loancertification, except (ii) that attached thereto is a true and complete copy of the bylaws of Parent, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate and (iii) that attached thereto is a true and complete copy of the resolutions adopted by the board of directors of Parent (y) authorizing the execution, delivery and performance by Parent of this Agreement and the other Credit Documents to which it is a party, and (z) authorizing, in its capacity as the managing member of the Borrower, the execution, delivery and performance by the Borrower of the Credit Documents to which the Borrower is a party, and as to the extent that such representations incumbency and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as genuineness of the signature of each officer of Parent executing any of such earlier dateCredit Documents, and except that for purposes attaching all such copies of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01documents described above.
(e) No Default The Administrative Agent shall existhave received (i) a certificate as of a recent date of the good standing of each of the Borrower and Parent under the laws of the State of Delaware, or would result from, such proposed Borrowing or from the application Secretary of State of Delaware, (ii) a certificate as of a recent date of the proceeds thereofqualification of Parent to conduct business as a foreign corporation in the State of California, from the Secretary of State of California, and (iii) certificates as of a recent date of the qualification of the Borrower to conduct business as a foreign corporation in the States of Illinois and California, from the Secretaries of State of Illinois and California.
(f) The Borrower All legal matters, documentation, and corporate or other proceedings incident to the Transactions shall be satisfactory in form and substance to the Administrative Agent and the Documentation Agent; all approvals, permits and consents of any Governmental Authorities or other Persons required in connection with the execution and delivery of this Agreement and the other Credit Documents and the consummation of the Transactions shall have been obtained (without the imposition of conditions that are not acceptable to the Administrative Agent), and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in compliance (on a Pro Forma Basis taking into account full force and effect and the Administrative Agent shall have received such copies thereof as it shall have requested; all applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There waiting periods shall not have occurred expired without any 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.
(h) The absence of adverse action being taken by any condition, circumstance, Governmental Authority having jurisdiction; and no action, suitproceeding, investigation investigation, regulation or proceeding pending or, to the knowledge of the Borrower and/or Guarantorslegislation shall have been instituted, threatened in or proposed before, and no order, injunction or decree shall have been entered by, any court or before other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or that is otherwise related to or arises out of, this Agreement, any arbitrator of the other Credit Documents or Governmental Authority that the consummation of the Transactions, or that, in the opinion of the Administrative Agent, could reasonably be expected to have a Material Adverse Effect.
(g) The Administrative Agent shall have received evidence in form and substance satisfactory to it that (i) the holders of not less than 100% of the Existing Subordinated Notes shall have tendered the Existing Subordinated Notes held by them in accordance with the terms of the Subordinated Note Offer, (ii) the Subordinated Note Offer shall have been consummated in all material respects in compliance with all applicable Requirements of Law, and (iii) the Existing Subordinated Note Indenture and all of the Existing Subordinated Notes shall have been canceled or terminated.
(h) All transaction fees and expenses payable by or on behalf of the Borrower in connection with the Transactions shall be in an aggregate amount reasonably acceptable to the Administrative Agent, and the Administrative Agent shall have received such evidence thereof in form and substance satisfactory to it (including itemizations thereof) as it shall have reasonably requested.
(i) The Administrative Agent shall have received a Committed Loan Notice certified reports from an independent search service satisfactory to it listing (i) any judgment or tax lien filing that names the Borrower as debtor in accordance with any of the requirements hereofjurisdictions listed on Annex A to the Borrower Pledge and Security Agreement or that names Parent as debtor in any of the jurisdictions listed on Annex A to the Parent Pledge and Security Agreement and (ii) any Uniform Commercial Code financing statement that names the Borrower or Parent as debtor in any of such jurisdictions, as applicable, and the results thereof shall be satisfactory to the Administrative Agent.
(j) The Administrative Agent shall have received evidence in form and substance satisfactory to it that all filings, recordings, registrations and other actions (including, without limitation, the filing of duly completed UCC-1 financing statements in each jurisdiction listed on Annex A to the Borrower Pledge and Security Agreement or Annex A to the Parent REIT Pledge and Security Agreement) necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect the Liens created by the Security Documents shall have been completed, or arrangements satisfactory to the Administrative Agent for the completion thereof shall have been made.
(k) Since December 31, 1997, both immediately before and after giving effect to the consummation of the Transactions, there shall not have occurred any Material Adverse Change or any event, condition or state of facts that could reasonably be expected to result in a Material Adverse Change.
(l) The Borrower shall have entered into paid (i) to the PNC FacilityArranger, for the account of the Agents, the Bank unpaid balance of America Facilitythe fee described in paragraph (1) of the Fee Letter, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment all other fees and expenses of the Agents and the Lenders required hereunder or under any other Credit Document to be paid on or prior to the Closing Date (including fees and expenses of counsel) in connection with this Agreement and the transactions contemplated hereby.
(m) The Administrative Agent shall have received a Covenant Compliance Worksheet, duly completed and certified by the chief financial officer of Parent and in form and substance satisfactory to the Administrative Agent, demonstrating Parent's compliance with the financial covenants set forth in SECTIONS 7.1 through 7.3 (at the levels applicable thereto as of March 31, 1998), determined on a pro forma basis as of December 31, 1997 after giving effect to the making of the initial Loans hereunder and the consummation of the other Transactions.
(n) The Administrative Agent shall have received evidence satisfactory to it that concurrently with the making of the initial Loans hereunder, (x) all principal, interest and other amounts outstanding with respect to the Existing Senior NotesIndebtedness shall be repaid and satisfied in full, each (y) all commitments to extend credit under the Existing Senior Credit Agreement shall be terminated, and (z) any Liens securing any Existing Senior Indebtedness shall be released.
(o) The Administrative Agent shall have received evidence in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality it that all of the requirements of SECTION 6.6 and those provisions of the last paragraph Borrower Pledge and Security Agreement relating to the maintenance of Section 9.03insurance have been satisfied, for purposes including receipt of determining compliance with certificates of insurance evidencing the conditions specified in this Section 4.01insurance coverages described on SCHEDULE 5.17 and all other or additional coverages required under the Borrower Pledge and Security Agreement and naming the Administrative Agent as loss payee or additional insured, 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 its interests may appear.
(p) The Administrative Agent shall have received notice an Account Designation Letter, together with written instructions from an Authorized Officer, including wire transfer information, directing the payment of the proceeds of the initial Loans to be made hereunder.
(q) The Administrative Agent and each Lender shall have received such Lender prior to other documents, certificates, opinions and instruments in connection with the proposed Closing Date specifying its objection theretotransactions contemplated hereby as it shall have reasonably requested.
Appears in 1 contract
Conditions of Initial Borrowing. The obligation of each Lender to advance make Loans in connection with the Borrowings on initial Borrowing hereunder, and the Closing Date obligation of its Loans hereunder the Issuing Bank to issue Letters of Credit hereunder, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated as of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orunless otherwise specified) and, except for the Notes and the certificates and instruments required to be delivered under the Security Agreements, in sufficient copies for each Lender:
(i) counterparts hereof signed by each of the parties hereto;
(ii) a Note for the account of each Lender that is a party hereto as of the Closing Date, in the case amount of such Lender's Commitment and duly completed and executed by the Borrower;
(iii) the Guaranty, duly completed and executed by the Guarantors;
(iv) the Security Agreements, duly completed and executed by the Borrower and the Subsidiaries owning any property of the type covered thereby, together with all certificates evidencing the capital stock being pledged thereunder and undated stock powers for each such certificate, duly executed in blank, and any promissory notes being pledged thereunder, duly endorsed in blank;
(v) an acknowledgement copy, or other evidence satisfactory to the Agent, of governmental officialsthe proper filing or recording of each document (including Financing Statements) required by law or reasonably requested by the Agent to be filed or recorded in each jurisdiction in which the filing or recording is so required or requested in order to create in favor of the Agent, for the benefit of the Lenders, a recent date before valid, legal and perfected first priority security interest in or lien on the Closing DateCollateral that is the subject of the Security Agreements, subject only to Permitted Liens;
(vi) and each a certificate, signed by the chief executive officer or chief financial officer of the Borrower, in form and substance satisfactory to the Administrative Agent Agent, certifying that (A) all representations and each warranties of the Lenders:
(i) executed counterparts of this Agreement, sufficient Borrower contained in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan 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 are true and correct as of the Closing Date, both immediately before and after giving effect to which such Loan Party any Loans to be made on the Closing Date hereunder and the application of the proceeds thereof, (B) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to any Loans to be made on the Closing Date hereunder and the application of the proceeds thereof, (C) both immediately before and after giving effect to the consummation of the transactions contemplated by this Agreement, no Material Adverse Change has occurred since December 31, 1995, and there exists no event, condition or state of facts related to the business of the Borrower and its Subsidiaries that could reasonably be expected to result in a partyMaterial Adverse Change and (D) the Borrower has satisfied each of the conditions set forth in this Section applicable to the Borrower and its Subsidiaries;
(ivvii) copies a certificate of the Organization Documents secretary or an assistant secretary of each Loan Party certified of the Borrower and its Subsidiaries, in form and substance satisfactory to be the Agent, certifying (A) that attached thereto is a true and complete copy of the articles or certificate of incorporation and all amendments thereto of the Borrower or such Subsidiary, as the case may be, certified as of a recent date by the appropriate Secretary of State (or comparable Governmental Authority Authority) of the state or other its jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date 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 the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease bylaws of the Borrower or operation of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each LenderSubsidiary, as the case may be, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such matters concerning certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the Loan Parties and board of directors of the Loan Documents Borrower or such Subsidiary, as the Administrative Agent case may request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consentsbe, licenses and approvals required in connection with authorizing 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 as to the incumbency 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 genuineness of the signature of each officer of the Borrower certifying or such Subsidiary executing any of such Loan Documents, and attaching all such copies of the documents described above; provided, that non-corporate Subsidiaries shall provide comparable documentation as appropriate and reasonably satisfactory to the Agent.
(viii) certificates as of a recent date of (A) that the conditions specified in Sections 4.01(d)good standing of each of the Borrower and its Subsidiaries under the laws of its jurisdiction of organization, from the Secretary of State (eor comparable Governmental Authority) and (f) have been satisfiedof such jurisdiction, (B) that there has been no event or circumstance since the date qualification of each of the Audited Financial Statements that has had or could be reasonably expected Borrower and its Subsidiaries to have, either individually or conduct business as foreign corporations in the aggregatestates where each is qualified to conduct business and, a Material Adverse Effect; and (C) a calculation where reasonably available from the department of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of revenue or other appropriate Governmental Authority, that the Borrower ended on June 30and each Subsidiary has filed all required tax returns and owes no delinquent taxes; provided, 2017;
(viii) a duly completed Compliance Certificate as of that non-corporate Subsidiaries shall provide comparable certificates to the last day of extent available and such other documentation reasonably requested by the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;Agent.
(ix) evidence that all insurance required to be maintained pursuant the favorable opinion of Mayor, Day, Xxxxxxxx & Xxxxxx, L.L.P., counsel to the Loan Documents has been obtained Borrower, addressed to the Agent and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing DateLenders, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of Agent and each Lender;
(Ax) the Borrower, (B) results of a search of all filings made against the Borrower and each Guarantor that is a party to the Guarantors' Security Agreement under the Uniform Commercial Code as in effect in any state and/or county in which any assets of the other Loan PartiesBorrower or such Guarantor are located, indicating that the Collateral is free and (C) the Consolidated Parties on a consolidated basisclear of any liens or encumbrances except for Permitted Liens; and
(xi) such other assurances, certificates, documentsand copies of policies, consents or opinions as of insurance, in form and substance satisfactory to the Administrative Agent or Agent, upon the Required Lenders reasonably may requireCollateral and the business of the Borrower and each Guarantor.
(b) Any fees All legal matters, documentation and corporate or other proceedings incident to the transactions contemplated hereby shall be reasonably acceptable to the Agent; all approvals, permits and consents of any Governmental Authorities or other Persons required to be paid hereunder or under in connection with the Fee Letters on or before execution and delivery of this Agreement and the Closing Date consummation of the transactions contemplated hereby shall have been paid obtained (provided such fees may be paid from without the proceeds imposition of such initial Loanconditions that are not reasonably acceptable to the Agent).
(c) Unless waived by the Administrative Agent, the Borrower and all related filings, if any, shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced 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 Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 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 in all material respects on and as of the date of such Loan, 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 datebeen made, and except that for purposes of this Section 4.01all such approvals, the representations permits, consents and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower filings shall be in compliance (on a Pro Forma Basis taking into account full force and effect and the Agent shall have received such copies thereof as it shall have requested; all applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There waiting periods shall not have occurred expired without any 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.
(h) The absence of adverse action being taken by any condition, circumstance, Governmental Authority having jurisdiction; and no action, suitproceeding, investigation investigation, regulation or proceeding pending or, to the knowledge of the Borrower and/or Guarantorslegislation shall have been instituted, threatened in or proposed before, and no order, injunction or decree shall have been entered by, any court or before any arbitrator other Governmental Authority, in each case to enjoin, restrain or Governmental Authority prohibit, to obtain substantial damages in respect of, or that could is otherwise related to or arises out of, this Agreement or the consummation of the transactions contemplated hereby, or that, in the opinion of the Agent, would otherwise be reasonably be expected likely to have a Material Adverse Effect.
(c) Since December 31, 1995, both immediately before and after giving effect to the consummation of the transactions contemplated by this Agreement, there shall not have occurred any Material Adverse Change or any event, condition or state of facts relating to the business of the Borrower and its Subsidiaries that could reasonably be expected to result in a Material Adverse Change, other than as specifically contemplated by this Agreement and the other Loan Documents.
(d) The Borrower shall have paid (i) to First Union, the unpaid balance of the fees described in paragraph (i) of the Fee Letter, (ii) to the Agent, the initial payment of the annual administrative fee described in paragraph (ii) of the Fee Letter, and (iii) all other fees and expenses of the Agent and the Lenders for which the Borrower has received an invoice required hereunder or under any other Loan Document to be paid on or prior to the Closing Date (including fees and expenses of counsel) in connection with this Agreement and the transactions contemplated hereby.
(e) The Administrative Agent shall have received a Committed Loan Notice in accordance an Account Designation Letter, together with written instructions from an Authorized Officer of the requirements hereofBorrower, including wire transfer information, directing the payment of the proceeds of the initial Loans to be made hereunder.
(jf) The Parent REIT and the Borrower Lenders shall have entered into (i) received the PNC FacilityFinancial Statements from the Borrower, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent. Without limiting Lenders.
(g) All taxes, fees and other charges in connection with the generality execution, delivery, recording, filing and registration of any of the provisions of Loan Documents shall have been paid by the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, Borrower.
(h) The Agent and 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 other documents, certificates, and instruments as the Agent or any Lender prior to the proposed Closing Date specifying its objection theretoshall have reasonably requested.
Appears in 1 contract
Samples: Loan Agreement (American Oncology Resources Inc /De/)
