Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 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 or is to be a party; (iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are 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;
Appears in 2 contracts
Samples: Credit Agreement (Standex International Corp/De/), Credit Agreement (Standex International Corp/De/)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, 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 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 and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead 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 (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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of DLA Piper LLP (US), counsel to the Loan Parties, addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect;
(viii) a payoff letter from Siena Lending Group LLC satisfactory in form and substance to the Agent evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xi) results of searches or other evidence reasonably satisfactory to the 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, 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 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 Uniform Commercial Code 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, and (B) the Credit Card Notifications and Control Agreements required pursuant to Section 6.13 hereof, and (C) Collateral Access Agreements as required by the Agent (and including a Collateral Access Agreement with Amalgamate Processing, Inc, that also includes its agreement to provide certain services to Agent subject to certain conditions);
(xiii) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Excess Availability shall be not less than $3,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on December 31, 2017 and executed by a Responsible Officer of the Lead Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Lovesac Co), Credit Agreement (Lovesac Co)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedentprecedent except as otherwise agreed between the Lead 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 reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower Borrowers in favor of each Lender requesting that has requested a Note.Note at least five (5) Business Days in advance of the Closing Date;
(iii) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, together with (except as provided in such Collateral Documents);
(A) certificates, if any, representing the pledged equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the pledged debt referred to therein endorsed in blank;
(B) [reserved]; and
(C) evidence that all other actions, 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 and Collateral Agent;
(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 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 partyparty on the Closing Date;
(ivv) such documents (x) an opinion from Xxxxxxxx & Xxxxx LLP, New York, counsel to the Loan Parties, substantially in the form of Exhibit H-1, (y) an opinion of Xxx Xxxxx Xxxxxxxx Incorporated, Texas counsel to the Loan Parties, substantially in the form of Exhibit H-2 and certifications as (z) an opinion of Xxxxx Xxxxx, Guernsey counsel to the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedParties, and that each substantially in the form of Exhibit H-3;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries are validly existingcertifying that, in good standing and qualified to engage in business in each jurisdiction where its ownershipsince December 31, lease 2010, there has not been any change, event, occurrence, development or operation of properties effect which has had or the conduct of its business requires such qualification, except to the extent that failure to do so could not would reasonably be expected to have a Closing Date Material Adverse Effect;
(vii) a certificate attesting to the Solvency of the Company and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transaction, from the Chief Financial Officer of the Company;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent and Collateral Agent has been named as loss payee and additional insured or mortgagee, as applicable, under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ix) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension;
(x) copies of a recent Lien, bankruptcy, judgment, copyright, patent and trademark search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties; and
(xi) good standing certificates or certificates of status, as applicable and bring down telegrams or facsimiles, for each Loan Party.
(b) All fees and expenses required to be paid hereunder or pursuant to the Fee Letter, to the extent invoiced at least three (3) Business Days prior to the Closing Date shall have been paid in full in cash or will be paid on the Closing Date out of the initial Credit Extension.
(c) Prior to or simultaneously with the initial Credit Extension, (i) the Equity Contribution shall have been consummated, (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Merger Agreement, without giving effect to any modifications, amendments, consents or waivers of the Merger Agreement that are material and adverse to the Lenders or the Lead Arrangers as reasonably determined by the Lead Arrangers, without the prior consent of the Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) and (iii) the LifeCell Restructuring shall have been consummated.
(d) To the extent Equity Interests other than common Equity Interests were issued in connection with the Equity Contribution, such issuance shall be on terms and conditions, and pursuant to documentation, reasonably satisfactory to the Lead Arrangers.
(e) The Lead Arrangers shall have received (i) the Audited Financial Statements, (ii) the Unaudited Financial Statements and (iii) the Pro Forma Financial Statements.
(f) The Refinancing shall have been consummated, except that the following Existing Indebtedness shall be permitted to remain outstanding after giving effect to the Transaction: (a) the Convertible Notes; provided that Holdings shall have deposited (or caused to be deposited) with a paying agent in accordance with the Merger Agreement at or prior to the Closing Date an amount in cash sufficient for the conversion and settlement of the Convertible Notes in full and (b) other Indebtedness specified on Schedule 4.01(f) hereto.
(g) The Specified Merger Agreement Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(h) The Administrative Agent and the Lead Arrangers shall have received all documentation and other information about Parent GP, the Borrowers and the Guarantors as has been reasonably requested in writing at least five days prior to the Closing Date by the Administrative Agent and the Lead Arrangers 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.
(i) The Notes Intercreditor Agreement shall have been duly executed and delivered by each party thereto, substantially in the form of Exhibit N, and shall be in full force and effect.
Appears in 2 contracts
Samples: Credit Agreement (Kinetic Concepts Inc), Credit Agreement (KCI Animal Health, LLC)
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Closing Date 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 Guaranty, sufficient in number for distribution to Perfection Certificate by each of the Administrative Agent, each Lender and the Borrowerparties thereto;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note.;
(iii) the Security Agreement, the Pledge Agreement, the Intellectual Property Security Agreement and the Swedish Pledge Agreement, each duly executed by each Loan Party party thereto, together with:
(A) 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,
(B) 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); and
(C) evidence that all action required to perfect the Collateral Agent’s security interest in the Intellectual Property of the Loan Parties that own Intellectual Property registered in the United States Patent & Trademark Office or the United States Copyright Office has been or will be taken;
(iv) 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;
(ivv) 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;
(vi) an opinion (A) of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, and (B) Swedish counsel to the Loan Parties, each in form and substance reasonably satisfactory to the Administrative Agent;
(vii) 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;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying that, after giving effect to the Transaction, the Loan Parties on a Consolidated basis are Solvent;
(ix) 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;
(x) a certified copy of the Term Loan Credit Agreement, duly executed by the parties thereto;
(xi) (A) appraisals by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Loan Parties, the results of which are satisfactory to the Collateral Agent, and (B) a written report regarding the results of a collateral field examination of the Loan Parties, which shall be satisfactory to the Collateral Agent. The Administrative Agent acknowledges that the condition set forth in this clause (xi) is deemed satisfied by the Administrative Agent’s receipt of such deliverables under the Existing Credit Agreement;
(xii) executed counterparts of the Intercreditor Agreement from each of the parties thereto;
(xiii) 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;
(xiv) a certificate signed by a Responsible Officer of the Borrower certifying that attached to such certificate is a true, correct and complete copy of the Management Agreement, including all amendments thereto; and
(xv) such documents and certifications other certificates, documents, consents or opinion as the Administrative Agent may reasonably require require.
(b) The Administrative Agent shall have received a Borrowing Base Certificate prepared as of a date not earlier than the last Business Day of February, 2012 and executed by a Responsible Officer of the Borrower.
(c) The Certificate representing the Pledged Equity referred to in the Swedish Pledge Agreement accompanied by an undated stock power executed in blank or endorsement has, to the extent not previously delivered, been delivered to the agent under the Term Loan Documents.
(d) The Closing Date shall have occurred on or before May 15, 2012.
(e) The Borrower shall have entered into the Term Facility and the terms of and the documentation evidencing the Term Facility shall be consistent with the term sheet therefor previously furnished to the Administrative Agent.
(f) The Lenders shall have received, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(g) The Administrative Agent shall have received evidence that each Loan Party is duly organized or formed, and that each of the Borrower Existing Credit Agreement, the Existing Term Loan Facility and its Subsidiaries the Mezzanine Facility has been or concurrently with entry into this Agreement on such date is being terminated and all Liens securing obligations under the Existing Credit Agreement and the Existing Term Loan Facility have been or concurrently with entry into this Agreement on such date are validly existingbeing released. Without limiting the generality of the provisions of Section 9.07, for purposes of determining compliance with the conditions specified in good standing and qualified this Section 4.01, each Lender that has signed this Agreement shall be deemed to engage in business in have consented to, approved or accepted or to be satisfied with, each jurisdiction where its ownership, lease document or operation of properties other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the conduct of its business requires Administrative Agent shall have received notice from such qualification, except Lender prior to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;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 Credit Extension. The obligation of the L/C Issuer Issuer, Swing Line Lender, and each Lender to make its initial Credit Extension 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 and the Guaranty, Guaranties sufficient in number for distribution to the Administrative Agent, each Lender Lender, and the BorrowerBorrower for each Initial Borrowing Base Property;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note.;
(iii) 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 Responsible Officer of such Loan Party to be true and correct as of the Closing Date;
(iv) 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;
(ivv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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;
(vi) a favorable opinion of DLA Piper LLP (US), counsel to the Loan Parties, addressed to 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 Required Lenders may reasonably request;
(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;
(viii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 5.02(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;
(ix) a duly completed Borrowing Base Report and Compliance Certificate as of the Closing Date, signed by a Responsible Officer of Borrower;
(x) evidence that each Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under each Existing Credit Agreement have been or concurrently with the Closing Date are being released; and
(xi) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(xii) such other assurances, certificates, documents, consents or opinions as Administrative Agent, Swing Line Lender, L/C Issuer or Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Administrative Agent, Borrower shall have paid all fees, charges and disbursements of counsel to Administrative Agent (directly to such counsel if requested by Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 5.01, 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 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 (STAG Industrial, Inc.), Credit Agreement (STAG Industrial, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 and the GuarantyAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrower (unless otherwise approved by Administrative Agent);
(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;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are is validly existing, in good standing and qualified to engage in business in each in its jurisdiction where its ownershipof organization or formation;
(v) a favorable opinion of Xxxxx Lovells US LLP, lease or operation of properties or the conduct of its business requires such qualification, except counsel to the extent Loan Parties, addressed to Administrative Agent and each Lender, in form and substance reasonably satisfactory to Administrative Agent;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that failure the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to do so have, either individually or in the aggregate, a Material Adverse Effect, (C) no consents, licenses or approvals are required in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party and (D) the current Debt Rating;
(vii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of Borrower ended on March 31, 2016, signed by a Responsible Officer of Borrower; and
(viii) such other customary documents, instruments, agreements, or information, as Administrative Agent reasonably may require.
(b) There shall not exist any action, suit, investigation, or proceeding, pending or, to the knowledge of a Responsible Officer of Borrower, threatened in any court or before any arbitrator or Governmental Authority related in any way to the Obligations or that could not reasonably be expected to have a Material Adverse Effect;; provided that the parties hereto acknowledge and agree that any settlement or litigation between Borrower and the United States Department of Justice and the United States Environmental Protection Agency related to the ongoing matter related to stormwater discharge practices of Borrower as disclosed in Borrower’s 2015 Form 10-K shall not be considered a Material Adverse Effect.
(c) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(d) Any fees required to be paid on or before the Closing Date shall have been paid.
(e) Unless waived by Administrative Agent, Borrower shall have paid, subject to any limitations described in the Mandate Letter, all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to Administrative Agent (directly to such counsel if requested by Administrative Agent) to the extent invoiced not less than one (1) Business Day 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 Borrower and 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 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, Credit Agreement (NVR Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, 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 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 and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead 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 reasonably 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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx Xxxx Xxxxxxxxx Xxxxxx Xxxxxxxx LLP, Xxxxxx Xxxxxxxxx, Esq. (New York local counsel, and Xxxxxxx Xxxxxxxx Law Offices, PSC (Puerto Rico local counsel), counsel to the Loan Parties, in each case, addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(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, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, (D) all of the Loan Parties’ accounts payable are within stated invoice terms as of the Closing Date, or as permitted in the ordinary course of Borrower’s business consistent with past practices, and (E) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) the Miraloma Consent;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from JPMorgan Chase Bank, N.A., as agent for the lenders under the Existing Credit Agreement, satisfactory in form and substance to the Agent evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(x) the Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(xi) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xii) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Agent of all Inventory of the Loan Parties, the results of which are satisfactory to the Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Agent;
(xiii) results of searches or other evidence reasonably satisfactory to the 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, 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 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 Uniform Commercial Code 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) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements as required by the Agent;
(xv) the Intercreditor Agreement, which shall be in form and substance acceptable to the Agent;
(xvi) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) The Loan Parties shall have: (i) entered into the Term Loan, which shall be in form and substance acceptable to the Agent, and shall have received not less than $60,000,000 in proceeds in connection therewith, and (ii) delivered to the Agent a certificate from an Authorized Officer of the Lead Borrower, in form and substance satisfactory to the Agent, attaching true, correct and complete copies of the Term Loan and all related loan documentation.
(c) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $75,000,000.
(d) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on November 26, 2011, and executed by a Responsible Officer of the Lead Borrower.
(e) The Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since January 29, 2011.
(f) The Agent shall have received and be satisfied with (i) a detailed forecast for the period commencing on the Closing Date and ending with the end of the then next Fiscal Year, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices and (b) 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.
(h) There shall not have occurred any default of any Material Contract of any Loan Party which could constitute an Event of Default under Section 8.01(n).
(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 to the Agent or the Arranger on or before the Closing Date shall have been paid in full, and all fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(k) The Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Agent to the extent invoiced prior to or on the Closing Date, plus such additional reasonable 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 Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Agent).
(l) The Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(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) The Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.04, 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 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 (Pacific Sunwear of California Inc), Credit Agreement (Pacific Sunwear of California Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 PartyCompany, 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, the Security Agreement, the Collateral Administration Agreement, the Sale Agreement and the GuarantyInvestment Advisory Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a Note.Notes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer 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 the Company is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Company is duly organized or formedorganized, and that each of the Borrower and its Subsidiaries are is validly existing, in good standing and qualified to engage in business in Delaware;
(v) a favorable opinion of counsel to the Company, addressed to the Administrative Agent and each jurisdiction where its ownershipLender, lease as to the matters concerning the Company, the Investment Adviser and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Company 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 operation of properties circumstance since November 14, 2013 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect (other than a Collateral Value Condition); and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the conduct Required Lenders reasonably may require.
(b) The Administrative Agent shall have confirmed that the Net Asset Value of its business requires Borrower is at least equal to $25,000,000.
(c) Any fees required to be paid on or before the Closing Date that have been invoiced shall have been paid.
(d) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such qualification, except 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 failure such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent); provided, however, that such fees, charges and disbursements shall only be due and payable to do so could not reasonably the extent provided pursuant to Section 10.04. 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 expected 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 Material Adverse Effect;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 (American Capital Senior Floating, Ltd.), Credit Agreement (American Capital Senior Floating, Ltd.)
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension 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 e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originalsoriginals to the extent set forth below or otherwise requested by the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyObligor, each dated the Closing Date (or, in the case of certificates of governmental officials, 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 GuarantyAgreement, sufficient in such number for distribution to the as requested by Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note.Note executed by the Borrower in favor of each Lender requesting a Note (which, to the extent delivered via e-mail (in a .pdf format) or telecopies, shall be followed promptly by originals);
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party Obligor as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party Obligor is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party Obligor is duly organized or formed, and that each of the Borrower and its Subsidiaries are 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 could would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (A) Sullxxxx & Xromxxxx XXX, as New York counsel to the Borrower, and (B) Geraxxx X. Xxxxxx, xx-house counsel to the Borrower, each addressed to the Administrative Agent and each Lender, as to such matters concerning the Obligors and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all third-party consents, licenses and approvals required in connection with the execution, delivery and performance by each Obligor and the validity against each Obligor of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such third-party consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since December 31, 2014 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in writing in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) has a reasonable probability of being determined adversely and if determined adversely would reasonably be expected to have a Material Adverse Effect;
(viii) a Solvency Certificate from the Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) a duly completed compliance certificate signed by the chief financial officer of the Borrower, giving pro forma effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date and the repayment of all Indebtedness under the Existing Credit Facility) and including in reasonable detail the calculations required to establish compliance with the covenants set forth in Section 7.09(a) and Section 7.09(e) (whether or not such covenants are required to be tested pursuant to such sections) (such compliance certificate, the “Pro Forma Closing Date Compliance Certificate”).
(x) evidence that substantially concurrently with the Closing Date all Indebtedness under the Existing Credit Facility (including all unpaid principal, interest, fees, expenses and other amounts owing thereunder or in connection therewith) has been repaid in full and all commitments thereunder have been terminated and all Liens in connection therewith have been released;
(xi) the financial statements referenced in Section 5.05(a) and (b);
(xii) a list of all Unencumbered Pool Properties as of the Closing Date;
(xiii) such additional assurances or certifications with respect to satisfaction of the conditions precedent in Article IV as the Administrative Agent, the L/C Issuers, the Swing Line Lenders or the Required Lenders reasonably may require; and
(xiv) the Administrative Agent and each Lender shall have received all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
(b) Any fees required hereunder or under the Fee Letter to be paid on or before the Closing Date shall have been 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 one primary 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 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). 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 2 contracts
Samples: Credit Agreement (Forest City Enterprises Inc), Credit Agreement (Forest City Realty Trust, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 and the Guaranty, Guaranties sufficient in number for distribution to the Administrative Agent, each Lender Lender, and the BorrowerBorrower for each Initial Borrowing Base Property;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note.;
(iii) 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 Responsible Officer of such Loan Party to be true and correct as of the Closing Date;
(iv) 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;
(ivv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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;
(vi) a favorable opinion of DLA Piper LLP (US), counsel to the Loan Parties, addressed to 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 Required Lenders may reasonably request;
(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;
(viii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 5.02(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;
(ix) a duly completed Borrowing Base Report and Compliance Certificate as of the Closing Date, signed by a Responsible Officer of Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(xi) such other assurances, certificates, documents, consents or opinions as Administrative Agent or Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Administrative Agent, Borrower shall have paid all fees, charges and disbursements of counsel to Administrative Agent (directly to such counsel if requested by Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 5.01, 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 Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Term Loan Agreement (STAG Industrial, Inc.), Term Loan Agreement (STAG Industrial, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 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) [reserved]
(iv) 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;
(ivv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are each Guarantor 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;
(vi) a favorable opinion of DLA Piper, 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 Required Lenders may reasonably request;
(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;
(viii) 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, (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 Net Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(ix) [reserved];
(x) evidence that the Existing Credit Agreement (and all commitments thereunder) has been or concurrently with the Closing Date is being terminated (and each Lender hereunder which was a “Lender” as defined in the Existing Credit Agreement waives the requirement under Section 2.06 of the Existing Credit Agreement for five Business Days prior notice of the termination thereof); and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid 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). 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 (Varian Medical Systems Inc), Credit Agreement (Varian Medical Systems Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 and the GuarantyGuaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrowers;
(ii) a Note Notes executed by the Borrower Borrowers in favor of each Lender requesting a Note.Notes;
(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) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower Borrowers and its Subsidiaries are the other Loan Parties is validly existing, and to the extent applicable, 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 (i) Xxxxxxx Xxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H-1, (ii) NautaDutilh, Dutch and Curaçao counsel to the Loan Parties, addressed to the Administrative Agent and each Lender that is a Lender on the date hereof, as to the matters set forth in Exhibits H-2 and H-3 respectively, (iii) XxXxxx Xxxxx LLP, Canadian counsel to the Loan Parties, addressed to the Administrative Agent and each Lender as to the matters set forth in Exhibit X-0, xxx (xx) Xxxxxxxx Xxxxxxx XXX, XX counsel to the Loan Parties, addressed to the Administrative Agent and each Lender as to the matters set forth in Exhibit H-5, and in each case such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate of a Responsible Officer of each Borrower 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 Parent 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;
(viii) a duly executed and delivered copy of the Subordination Agreement reasonably satisfactory to the Administrative Agent subordinating all intercompany indebtedness among the Loan Parties to the Obligations substantially in the form of Exhibit G;
(ix) a duly executed and delivered copy of the Contribution and Indemnity Agreement among the Guarantors apportioning the rights and obligations of each Guarantor substantially in the form of Exhibit H; and (x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Parent shall have paid all 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 Parent and the Administrative Agent). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Core Laboratories N V), Credit Agreement (Core Laboratories N V)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, 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 PartyObligor 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 Lenders:
(i) executed counterparts of this Agreement 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 Obligor as the Administrative Agent and Lenders may reasonably require evidencing (A) the authority of each Obligor to enter into the Loan Documents to which such Obligor 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 Obligor is a party or is to be become a party;
(iv) copies of each Obligor’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party Obligor is duly organized or formed, and that each of the Borrower and its Subsidiaries are Obligor 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx Xxxx Xxxxxxxxx Xxxxxx Xxxxxxxx LLP, Xxxxxx Xxxxxxxxx, Esq. (New York local counsel and Xxxxxxx Xxxxxxxx Law Offices, PSC (Puerto Rico local counsel), counsel to the Obligors, in each case, addressed to the Agent and each Lender, as to such matters concerning the Obligors and the Loan Documents as the Agent and Lenders may reasonably request, including with respect to the Preferred Stock and shares of common stock issuable upon conversion thereof;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in this Section 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, (C) to the Solvency of the Obligors and their Subsidiaries as of the Closing Date after giving effect to the transactions contemplated hereby, (D) all of the Obligors’ accounts payable are within stated invoice terms as of the Closing Date, or as permitted in the ordinary course of Borrower’s business consistent with past practices, and (E) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Obligor and the validity against such Obligor of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) [Reserved];
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from JPMorgan Chase Bank, N.A., as agent for the lenders under the Existing Credit Agreement, satisfactory in form and substance to the Agent evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(x) the Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(xi) the Preferred Stock Documents and certificates evidencing the Preferred Stock being issued thereunder, each duly executed by the Borrower;
(xii) all other Loan Documents, each duly executed by the applicable Obligors;
(xiii) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Agent and Lenders of all Inventory of the Loan Parties, the results of which are satisfactory to the Agent and Lenders and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Agent and Lenders;
(xiv) results of searches or other evidence reasonably satisfactory to the Agent and Lenders (in each case dated as of a date reasonably satisfactory to the Agent and Lenders) indicating the absence of Liens on the assets of the Obligors, 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 Agent and Lenders are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent and Lenders for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent and Lenders 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 and Lenders, (B) control agreements with respect to the Loan Parties’ securities and investment accounts, and (C) Collateral Access Agreements as required by the Agent;
(xvi) the Intercreditor Agreement, which shall be in form and substance acceptable to the Lenders;
(xvii) such other assurances, certificates, documents, consents or opinions as the Agent and Lenders reasonably may require.
(b) The Borrower and PacSun Stores shall have: (i) entered into the ABL Credit Agreement, which shall be in form and substance acceptable to the Lenders, and shall have received commitments for a revolving facility of not less than $100,000,000 in connection therewith, and (ii) delivered to the Agent a certificate from an Authorized Officer of the Borrower, in form and substance satisfactory to the Lenders, attaching true, correct and complete copies of the ABL Credit Agreement and all related loan documentation.
(c) After giving effect to the transactions contemplated hereby and under the ABL Credit Agreement (including the payment of any overdue accounts payable), Availability shall be not less than $90,000,000; provided, that any one-time lease buyout costs of the Borrower incurred and paid on or before the Closing Date in connection with the satisfaction of the condition set forth in Section 4.01(o) below shall be credited to Borrower’s liquidity.
(d) The Agent shall have received a Borrowing Base Certificate dated as of the Closing Date, relating to the fiscal month ended on November 26, 2011, and executed by a Responsible Officer of the Borrower.
(e) The Lenders shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Obligors and that there has been no Material Adverse Effect since January 29, 2011.
(f) The Lenders shall have received and be satisfied with (i) a detailed forecast for the period commencing on the Closing Date and ending with the end of the then next Fiscal Year, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP and consistent with the Obligors’ then current practices and (b) such other information (financial or otherwise) reasonably requested by the Lenders.
(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.
(h) There shall not have occurred any default of any Material Contract of any Obligor which could constitute an Event of Default under Section 8.01(n).
(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 to the Agent on or before the Closing Date shall have been paid in full, and all fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(k) The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Agent and Lenders to the extent invoiced prior to or on the Closing Date, plus such additional reasonable 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 Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Agent).
(l) The Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(m) No material changes in governmental regulations or policies affecting any Obligor or any Credit Party shall have occurred prior to the Closing Date.
(n) The Lenders shall notify the Borrower of the Closing Date, and such notice shall be conclusive and binding on the Obligors.
(o) Borrower shall have reached agreement for the buyout of no less than 70 store leases and a commensurate number of rent reductions with its landlords consistent with the plan outlined to the Lenders.
(p) The representations and warranties of each Loan Party contained in Article V or in 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 Closing Date, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, (ii) in the case of any representation and warranty qualified by materiality, in which case they shall be true and correct in all respects.
(q) No Default or Event of Default shall exist, or would result after giving effect to the transactions contemplated hereby and under the ABL Credit Agreement.
(r) The Agent and Lenders shall have received a Request for Credit Extension in accordance with the requirements hereof.
Appears in 2 contracts
Samples: Credit Agreement (Pacific Sunwear of California Inc), Credit Agreement (Pacific Sunwear of California Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, telecopies or telecopies electronic copies in secure document format (such as .pdf) (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 and the GuarantyGuaranty Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower, and an executed counterpart of the Intercreditor Agreement;
(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;
(iv) with respect to each of the Loan Parties, such documents and certifications as the Administrative Agent may reasonably require to evidence that each such Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are validly existing, in good standing and qualified in its jurisdiction of formation, including Organization Documents, certificates of good standing and/or qualification to engage in business business;
(v) a favorable opinion of Stoel Rives LLP, counsel to the Loan Parties, and such other counsel as are determined by the Administrative Agent to be reasonably necessary, in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except case addressed to the extent Administrative Agent and each Lender and in form and substance satisfactory to the Administrative Agent;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying:
(A) that failure to do so the conditions specified in Sections 4.02(a) and (b) have been satisfied;
(B) that there has been no event or circumstance since July 3, 2005 that has had or could not be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect; and
(C) that no Default or Event of Default (each as defined in the Existing Credit Agreement) shall have occurred and be continuing under the Existing Credit, and no default or event of default shall have occurred and be continuing under any other instrument or agreement evidencing, securing or related to any other Material Senior Indebtedness;
(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;
(viii) a Compliance Certificate for the Borrower and its Subsidiaries, prepared as of the last day of the fiscal quarter of the Borrower ended July 3, 2005, signed by a Responsible Officer of the Borrower; and
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of 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).
Appears in 2 contracts
Samples: Credit Agreement (Precision Castparts Corp), Credit Agreement (Precision Castparts Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantyAgreement, sufficient in number for distribution to the Administrative Agent, each Lender Lender, the Guarantor and the Borrower;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a Note.Notes;
(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) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower Loan Party is validly existing and its Subsidiaries are validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownershipof organization;
(v) a favorable opinion of WilmerHale, lease or operation of properties or the conduct of its business requires such qualification, except counsel to the extent Loan Parties, addressed to the Administrative Agent and each Lender substantially in the form set forth in Exhibit G;
(vi) a certificate signed by a Responsible Officer of each Loan Party certifying (A) that failure to do so the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could not be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(vii) a duly completed Compliance Certificate as of the last day of the fiscal quarter ended on June 30, 2010, signed by a Responsible Officer of the Borrower;
(viii) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated; and
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all 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 Closing Date shall have occurred on or before October 31, 2010. 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. Each Lender that has signed this Agreement and that is a lender under the Existing Credit Agreement shall also be deemed to have waived the requirement under Section 2.06(a) of the Existing Credit Agreement for five Business Days advance notice of the termination of the Existing Credit Agreement contemplated by this Section.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed as promptly as practicable 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 and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead 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 (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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) favorable opinions of Xxxxxxx & Xxxx, S.C., Xxxxxxx & Xxxx LLP and Xxxxxxx & Xxxxxxx, P.C., counsel to the Loan Parties, each addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied), (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect;
(viii) a payoff letter from the agent for the lenders under the Existing Credit Agreement satisfactory in form and substance to the Agent evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full;
(ix) the Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xi) results of searches or other evidence reasonably satisfactory to the 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, 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 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 Uniform Commercial Code 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) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements to the extent required hereunder;
(b) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, (1) Exempted Debt does not exceed fifteen percent (15%) of Consolidated Net Tangible Assets, (2) Availability shall not be less than $1,000,000,000 and (3) the Agent shall have received a certificate signed by a Responsible Officer of each of the Parent and Lead Borrower certifying to the foregoing (which certification shall include a reasonably detailed calculation evidencing satisfaction with this condition);
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended December 31, 2022, and executed by a Responsible Officer of the Lead Borrower.
Appears in 1 contract
Samples: Credit Agreement (KOHLS Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder the Term Loan pursuant to Section 2.01 is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which (in the case of clauses (ii), (iii), (iv), (v), (vi) and (ix)(B)) shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each of which (in the case of clauses (iv), (v), (vi) and (ix)(B)) shall be 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 and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower[intentionally omitted];
(ii) a Note executed by favorable opinion of Xxxxx Day, counsel to the Borrower Loan Parties, addressed to the Administrative Agent and each Lender, in favor of each Lender requesting a Note.form and substance reasonably satisfactory to the Administrative Agent;
(iii) such certificates a favorable opinion of resolutions or other actionlocal counsel to the Loan Parties in Texas, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as addressed to the Administrative Agent may require evidencing and each Lender in form and substance reasonably satisfactory to 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 partyAdministrative Agent;
(iv) such documents a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.03(a) and certifications (b) that are required to be satisfied on or prior to the Closing Date have been satisfied, and (B) as to the absence of any action, suit or proceeding pending or, to the knowledge of the Company, threatened in any court or before any arbitrator or Governmental Authority relating to this Agreement, the other Loan Documents or the credit facilities hereunder;
(v) a certificate signed by the chief financial officer, treasurer or chief accounting officer of the Company, certifying that the Company individually is Solvent, and the Loan Parties taken as a whole are Solvent, in each case as of the Closing Date after giving effect to this Agreement, the other Loan Documents and Indebtedness pursuant hereto, the consummation of the Project Star Acquisition and the incurrence of the Term Loan;
(vi) (A) an executed authorization to share insurance information and (B) evidence that all insurance (including flood insurance, if applicable) required to be maintained pursuant to the Loan Documents has been obtained and is in effect, including endorsements naming the Administrative Agent (on behalf of the Secured Parties) as an additional insured or lender’s loss payee, as the case may reasonably require be, on all insurance policies maintained with respect to evidence that properties of the Company or any Loan Party constituting part of the Collateral;
(vii) UCC financing statements for filing in all places required by applicable law to perfect the Liens of the Administrative Agent for the benefit of the Secured Parties under the Security Instruments as a perfected Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements;
(viii) UCC search results with respect to each Loan Party is duly organized or formed(provided that promptly after the Closing Date the Borrower shall remove any Liens which are not Permitted Liens);
(ix) with respect to each Financed Property identified on Schedules 1.01(C) as of the Closing Date, and that each of the Borrower following, each of which shall be originals or telecopies (followed promptly by originals unless copies are otherwise specified) each in form and its Subsidiaries substance reasonably acceptable to the Administrative Agent:
(A) a copy of a FIRREA Appraisal;
(B) (x) an original Mortgage dated as of the Closing Date properly executed by a Responsible Officer of the signing Loan Party and evidence of the proper recordation of such Mortgage in the appropriate filing office (or delivery of such Mortgage to the applicable title company for recordation), and (y) the Closing Date Real Estate Support Documents (including originals thereof where required by applicable Law) with respect to such Financed Property;
(C) evidence that such Financed Property is not a Flood Hazard Property or the Administrative Agent has determined that such Financed Property is not subject to Flood Requirements under applicable Law;
(D) a copy of each Lease of such Financed Property, if any, and any sublease or Memorandum of Lease associated therewith, if any; and
(x) evidence of payment of all real estate recordation fees and taxes with respect to perfecting the Liens on Collateral.
(b) The Administrative Agent shall have received evidence in form reasonably satisfactory to it that the Project Star Acquisition shall have been consummated on or prior to the Closing Date in accordance with the Project Star Leases in all material respects and all applicable requirements of law, without giving effect to any amendments, consents or waivers by the Company that are validly existingmaterially adverse to the Administrative Agent or the Lenders without the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any reduction in the purchase price of, or consideration for, the Project Star Acquisition is not material and adverse to the interests of the Administrative Agent or the Lenders, so long as such reduction in the cash consideration is less than 10.0% of the original purchase price). 57
(c) (i) Upon the reasonable request of any Lender made at least ten (10) days prior to the Closing Date, the Company shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, in good standing each case at least five (5) Business Days prior to the Closing Date with respect to any Person that will be a Loan Party on the Closing Date but was not a Loan Party on the Effective Date and qualified (ii) at least three (3) Business Days prior to engage the Closing Date, any Person (a) that will be a Loan Party on the Closing Date but was not a Loan Party on the Effective Date and (b) that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in business in each jurisdiction where its ownershiprelation to such Loan Party.
(d) Any fees required to be paid on or before the Closing Date shall have been paid.
(e) Unless waived by the Administrative Agent, lease or operation the Company shall have paid all accrued fees, charges and disbursements of properties or counsel to the conduct of its business requires Administrative Agent (directly to such qualification, except 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 failure to do so could such estimate shall not reasonably thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(f) The Closing Date shall occur on or before June 30, 2021. 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 4.02, each Lender that has funded a portion of the Term Loan shall be expected 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 Material Adverse Effect;Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Each of the Administrative Agent and each Lender that has signed this Agreement hereby acknowledges and agrees that the conditions set forth in clauses (a)(vi), (a)(ix)(A) and (a)(ix)(C) above have been satisfied as of the Effective Date.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerAgreement;
(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 as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence demonstrate that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Company is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownershipof organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx, lease or operation of properties or the conduct of its business requires such qualificationLLP, except counsel to the extent Loan Parties, addressed to the Administrative Agent and each Lender, in form and substance satisfactory to the Administrative Agent;
(vi) a certificate signed by a Responsible Officer of the Company certifying (A) that failure to do so the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could not be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect;Effect and (C) that attached thereto is a true and correct calculation of the Leverage Ratio as of the last day of the fiscal quarter of the Company most recently ended prior to the Effective Date; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer or the Required Lenders reasonably may require.
(b) The Administrative Agent shall have received satisfactory evidence that all principal, interest, fees and other amounts owing under the Existing Credit Agreement (other than contingent obligations in respect of the Existing Letters of Credit and inchoate indemnity obligations) have been (or shall substantially contemporaneously with the effectiveness hereof be) repaid in full (it being understood that such amounts may be repaid out of the proceeds of Loans hereunder), and all commitments with respect thereto have been terminated.
Appears in 1 contract
Samples: Credit Agreement (Donaldson Co Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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) or electronic copies (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 Subsidiary Guaranty, in each case sufficient in number for distribution to the Administrative Agent, each Lender Lender, Parent, 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 or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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) favorable opinions of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, and Xxxxxxx LLP, counsel to Borrower and Parent, each addressed to Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as 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 of any Governmental Authority 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 Parent, for itself and on behalf of Borrower, certifying (A) that the conditions specified in Sections 6.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since December 31, 2012 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a duly completed Borrowing Base Report and Compliance Certificate certifying compliance with the financial covenants set forth in Section 9.15 (other than Sections 9.15(e) and 9.15(f)), in each case prepared as of the Closing Date on a proforma basis and signed by a Responsible Officer of Parent, for itself and on behalf of Borrower;
(ix) the Property Information with respect to each of the Initial Borrowing Base Properties;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(xi) such other certificates, documents, instruments or information as Administrative Agent, L/C Issuer, Swing Line Lender or Required Lenders may reasonably require.
(b) Any fees required to be paid pursuant to the Loan Documents on or before the Closing Date shall have been paid.
(c) Unless waived by Administrative Agent, Borrower shall have paid all fees, charges and disbursements of counsel to Administrative Agent (directly to such counsel if requested by Administrative Agent) required to be paid pursuant to the Loan Documents 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 Borrower and Administrative Agent).
(d) Administrative Agent and Lenders shall have received and be reasonably satisfied with the Historical Financial Statements and the Pro Forma Financial Statements.
(e) The IPO shall have occurred. Without limiting the generality of the provisions of the last paragraph of Section 11.03, for purposes of determining compliance with the conditions specified in this Section 6.01, 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 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 Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, 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 LendersAgent:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead 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 (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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxxxxx & Xxxxxx PLLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since January 31, 2010 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agents required under the Loan Documents have been obtained and are in effect;
(viii) a payoff letter from the agent for the lenders under the Existing Credit Agreement satisfactory in form and substance to the Administrative Agent evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security Documents (including, without limitation, the Mortgages, to the extent that Eligible Real Estate is included in the Borrowing Base as of the Closing Date) and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties, subject to acceptable temporary escrow of certificates pending payment in full of obligations under the Existing Credit Agreement;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xi) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Collateral Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Collateral Agent;
(xii) 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 Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any Mortgages, and releases or subordination agreements satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
Appears in 1 contract
Samples: Credit Agreement (Sportsman's Warehouse Holdings, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 and the GuarantyAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) a 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 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 or is to be a party;
(iv) such 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 Borrower and its Subsidiaries are Borrowers is validly existing, in good standing (to the extent such certification is available) 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 be so qualified could not reasonably be expected to have a Material Adverse Effect;
(A) a favorable opinion of Drinker Xxxxxx & Xxxxx LLP, counsel to the domestic Borrowers, and Xxxxx & XxXxxxxx, counsel to the Foreign Obligors in form and substance reasonably acceptable to Administrative Agent and its counsel and addressed to Administrative Agent and each Lender and (B) a favorable opinion of Seltzer, Kaplan, McMahon, Vitek, a Law Corporation, special California counsel to Epmar Corporation, in form and substance reasonably acceptable to Administrative Agent and its counsel and addressed to Administrative Agent and each Lender, provided that if Borrowers do not deliver such opinion to Administrative Agent and the Lenders on or before the Closing Date, then Borrowers shall deliver such opinion to Administrative Agent and the Lenders on or before the date two (2) weeks after the Closing Date under the terms of Section 6.13;
(vi) a certificate of a Responsible Officer of each Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower and the validity against such 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 Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Company most recently ended as to which financial statements are required to have been delivered prior to the Closing Date;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Company ended on June 30, 2005, signed by a Responsible Officer of the Company;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to 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 Company and the Administrative Agent).
(d) The Closing Date shall have occurred on or before October 21, 2005. Without limiting the generality of the provisions of Section 9.04 (Appointment and Authority), 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 Credit Extension. The obligation of the L/C Issuer and each the Lender to make its initial Credit Extension 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, facsimiles 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 PartyParty or the Lender, 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 LendersLender:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrower Borrowers in favor of each Lender requesting a Note.the Lender;
(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 be become a party;
(iv) copies of each Loan Party’s Organization Documents 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 Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Lender may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(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, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Lender required under the Loan Documents have been obtained and are in effect;
(viii) the Security Agreement, the Blocked Account Agreements, the DDA Notifications, the Credit Card Notifications and certificates evidencing any stock being pledged under any of the foregoing, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(ix) all other Loan Documents required to be executed pursuant to the terms hereof as of such date, each duly executed by the applicable Loan Parties;
(x) results of searches or other evidence reasonably satisfactory to the Lender (in each case dated as of a date reasonably satisfactory to the Lender) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances;
(xi) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Lender 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 Lender, (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ material securities and investment accounts, and (D) Collateral Access Agreements as required by the Lender (but in no case with respect to any Store); and
(xii) such other assurances, certificates, documents, consents or opinions as the Lender reasonably may require.
(b) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $15,000,000.
(c) The Lender shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on May 26, 2012, and executed by a Responsible Officer of the Lead Borrower.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 photocopies (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 and the Company Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) a Note Notes executed by the Borrower Borrowers in favor of each Lender requesting a Note.Notes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers or of the Secretary or Assistant Secretary 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) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Company is validly existing, in good standing and qualified to engage in business under the laws of Delaware and California;
(v) an opinion of Xxxxx Xxxx & Xxxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender substantially in the form of Exhibit K;
(vi) a certificate of a Responsible Officer or of the Secretary or Assistant Secretary of each jurisdiction where its ownershipLoan Party either (A) attaching copies of all consents, lease 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 operation (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer or of properties the Secretary or Assistant Secretary of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had, either individually or in the aggregate, a Material Adverse Effect and (C) the current Debt Rating;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Company ended on December 2, 2011, signed by a Responsible Officer of the Company;
(ix) evidence that the Existing Credit Agreement has been, or concurrently with the Closing Date is being, terminated; and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the Swing Line Lender or the conduct Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent and subject to limitations otherwise agreed in writing, the Company shall have paid all fees, charges and disbursements of its business requires counsel to the Administrative Agent (directly to such qualification, except 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 failure to do so could such estimate shall not reasonably thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(d) The Closing Date shall have occurred on or before March 31, 2012. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be expected 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 Material Adverse Effect;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 (Adobe Systems Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 Funding Date Loan Party, each dated the Closing Funding Release Date (or, in the case of certificates of governmental officials, a recent date before the Closing Funding Release Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantySubsidiary Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender Lender, and the Borrowereach Funding Date Loan Party, as applicable;
(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 Funding Date 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 Funding Date Loan Party is a party or is to be a party;
(iviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Funding Date Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Funding Date Loan 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;
(iv) a favorable opinion of (A) Hungarian counsel to the Funding Date Loan Parties, (B) Maltese counsel to the Funding Date Loan Parties, (C) Ukranian counsel to the Funding Date Loan Parties, (D) Texas counsel to the Funding Date Loan Parties and (E) Chinese counsel to the Funding Date Loan Parties, in each case, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H (unless, with respect to Chinese counsel, such opinion is being delivered to confirm that the Chinese Subsidiaries cannot be Loan Parties in accordance with Section 6.13(a)) and such other matters concerning the Funding Date Loan Parties and the Loan Documents to which they are party as the Required Lenders may reasonably request;
(v) a certificate of a Responsible Officer of each Funding Date Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Funding Date Loan Party and the validity against such Funding Date 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;
(vi) a certificate signed by a Responsible Officer of each Borrower certifying that (A) the conditions specified in Sections 4.03(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the Closing Date that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) no action, suit, investigation or proceeding is pending or, to the knowledge of either Borrower, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect;
(vii) certificates attesting to the Solvency of each Funding Date Loan Party before and after giving effect to the transactions contemplated hereby, from its chief financial officer; and
(viii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The expiration or termination of the waiting period under Xxxx-Xxxxx-Xxxxxx to the effect that the Takeover Offer and the Acquisition Agreement may be consummated as well as the achievement of Ukrainian merger control clearance for the consummation of the Takeover Offer and the Acquisition Agreement.
(c) Amerigon Germany has secured the acquisition of a number of shares in the German Borrower which represent at least 71.80% of the German Borrower’s registered share capital. Such number of shares shall be deemed to have been secured if the sum of the Equity Interests of the German Borrower for which the Takeover Offer has been validly accepted and for which the right of withdrawal has not been validly exercised at the time of the expiry of the acceptance period under the Takeover Offer amounts to at least 71.80% of the German Borrower’s registered share capital.
(d) All conditions to the release of funds on deposit in each Escrow Account shall have been met without dispute, or concurrently with the funding of the initial Credit Extensions hereunder will be met without dispute, and such funds held on deposit in each Escrow Account shall have been released, or concurrently with the funding of the initial Credit Extensions hereunder will be released, to or on behalf of Amerigon Germany in order to consummate the Acquisition, the Takeover Offer and any other transaction contemplated by the Related Documents.
(e) The Preferred Equity Investment shall have been made on terms and conditions and pursuant to the Preferred Equity Documents and shall be reasonably satisfactory to the Lenders.
(f) The proceeds of the Preferred Equity Investment in an amount equal to at least $70,000,000 shall be funded into the Equity Escrow Account and at least $20,000,000 in cash from the Parent shall be funded into the Parent Cash Escrow Account, in each case, concurrently with the funding of the initial credit extensions under the Parent Credit Facility Documents into the Senior Loan Escrow Account and such aggregate amounts together with any cash on hand of the Parent and Amerigon Germany shall be sufficient to consummate the Acquisition and any portion of the Takeover Offer, pay all fees, commissions and expenses related to the transactions contemplated thereby and by the Related Documents and meet the ongoing financial needs of the Parent and Amerigon Germany and their respective Subsidiaries after giving effect to the transactions contemplated thereby and by the Related Documents.
(g) The proceeds of each Escrow Account shall have been released in accordance with the applicable Escrow Agreement and applied to pay all or any portion of the Acquisition or the Takeover Offer, in accordance with the applicable Related Documents.
(h) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, evidence that (i) any and all existing Indebtedness (other than Indebtedness permitted under Section 7.03) of the German Borrower and each of its Subsidiaries has been, or concurrently with the funding of the initial Credit Extensions hereunder, will be terminated and (ii) any and all Liens (other than Liens permitted under Section 7.01) securing the obligations thereunder have been, or concurrently with the funding of the initial Credit Extensions hereunder, will be terminated and otherwise released. 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 4.02, 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 Funding Release Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Amerigon Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, 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 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 and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead 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 (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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) favorable opinions of Xxxxxx LLP, counsel to the Loan Parties, addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(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, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect;
(viii) a payoff letter from the agent for the lenders under the Existing Credit Agreement satisfactory in form and substance to the Agent evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security Documents;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xi) results of searches or other evidence reasonably satisfactory to the 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, 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 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 Uniform Commercial Code 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) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements as required by the Agent; and
(xiii) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) The Agent shall have received an Inventory Report as of the day prior to the date of Closing and if it shows that an ABL Compliance Event exists, then the Agent shall also have received a fully completed Borrowing Base Certificate dated the Closing Date and executed by a Responsible Officer of the Lead Borrower.
(c) The Agent shall have received and be satisfied with (i) a detailed forecast for the period requested by Agent commencing on the Closing Date and, Consolidated income statement, balance sheet, and statement of cash flow, by quarter, each prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices and (b) such other information (financial or otherwise) reasonably requested by the Agent.
(d) 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.
(e) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(f) All fees and expenses required to be paid to the Agent or the Arranger on or before the Closing Date shall have been paid in full, and all fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(g) The Borrowers shall have paid all fees, charges and disbursements of counsel to the 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 Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Agent).
(h) The Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(i) The Borrower shall have paid to the Agent the Closing Fee specified in the Fee Letter. Without limiting the generality of the provisions of Section 9.04, 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 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 (Petsmart Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 LendersAgent:
(i) executed counterparts of this Agreement 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 (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 be 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 be a party;
(iv) a favorable opinion of Holland & Knight, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such documents matters concerning the Loan Parties and certifications the Loan Documents as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each request;
(v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and its Subsidiaries 4.02(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) either that (1) no consents, licenses or approvals are validly existingrequired 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, or (2) that all such consents, licenses and approvals have been obtained and are in good standing full force and qualified effect;
(vi) a certificate from the chief financial officer of the Borrower, satisfactory in form and substance to engage the Administrative Agent, attesting to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby;
(vii) the Security Documents, and any amendments or modification thereto, and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in business blank, each duly executed by the applicable Loan Parties;
(viii) all other Loan Documents, each duly executed by the applicable Loan Parties;
(ix) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each jurisdiction where its ownership, lease or operation case dated as of properties or a date reasonably satisfactory to the conduct Collateral Agent) indicating the absence of its business requires such qualificationLiens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases satisfactory to the extent Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral 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 Collateral Agent and (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13; and
(xi) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Excess Availability shall be not less than $5,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Report dated the Closing Date, relating to the week ended on Friday, February 16, 2007, and executed by a Responsible Officer of the Borrower.
(d) The Administrative Agent shall be reasonably satisfied that failure any financial statements delivered to do so it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(e) The Administrative Agent shall have received and be satisfied with (i) a detailed forecast for the period commencing on the Closing Date and ending with January 31, 2008, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices and (b) such other information (financial or otherwise) reasonably requested by the Administrative Agent.
(f) The Administrative Agent shall have received and found satisfactory (i) copies of the fully executed Second Amended and Restated Term Loan Credit Agreement, Second Amended and Restated Note and such other documents and instruments as shall evidence the Subordinate Facility, which shall provide, among other things, for the commitment by the lenders thereunder to make term loans to the Borrower in an aggregate amount of not less than $25,000,000, (ii) copy of the fully executed Intercreditor Agreement and (iii) evidence of the receipt by the Borrower of not less than $12,500,000 (net of fees and expenses payable in connection therewith) comprising the Subordinate Facility Second Additional Term Loan.
(g) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect;.
(h) There shall not have occurred any default of any Material Contract of any Loan Party which could reasonably be expected to have a Material Adverse Effect.
(i) The consummation of the transactions contemplated hereby shall not violate any Applicable Law or any Organization Document.
(j) All fees required to be paid to the Agents on or before the Closing Date shall have been paid in full or charged to the Loan Account, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full or charged to the Loan Account.
(k) The Borrower shall have paid all fees, charges and disbursements of counsel to 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). Without limiting the generality of the provisions of Section 9.04, 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 (BTHC VII Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s and the Term Loan Agent’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 email) (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 LendersTerm Loan Agent:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, the Term Loan Agent, each Lender and the Lead Borrower;
(ii) a Note Notes 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 (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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) favorable opinions of Lxxxxxx & Gxxx, LLP and local real estate counsel, counsel to the Loan Parties, addressed to the Agent and the Term Loan Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent and the Term Loan Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since February 2, 2014, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against any Loan Party of the Loan Documents, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent and the Term Loan Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Agent and the Term Loan Agent, attesting to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents and undated stock powers executed in blank, each duly executed by the applicable Loan Parties evidencing any stock being pledged thereunder, together with delivery to the Agent of (1) all “certificated securities” being pledged under the Security Documents, and (2) undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by applicable Loan Parties;
(xi) results of searches or other evidence reasonably satisfactory to the Agent and the Term Loan Agent (in each case dated as of a date reasonably satisfactory to the Agent and the Term Loan Agent) indicating the absence of Liens on the assets of the Loan Parties, 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 Agent and the Term Loan Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent and the Term Loan Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent and the Term Loan 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 and the Term Loan Agent, (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements as required by the Agent; and
(xiii) such other assurances, certificates, documents, consents or opinions as the Agent and the Term Loan Agent reasonably may require.
(b) The Agent and the Term Loan Agent shall have received a Borrowing Base Certificate dated the Closing Date, setting forth the Revolving Borrowing Base, the Real Estate Borrowing Base and the Term Loan Borrowing Base, in each case, relating to the month ended May 4, 2014, and executed by a Responsible Officer of the Lead Borrower.
(c) The Agent and the Term Loan Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Agent and the Term Loan Agent.
Appears in 1 contract
Samples: Credit Agreement (Alco Stores Inc)
Conditions of Initial Credit Extension. The Except as set forth in Section 6.19, the obligation of the L/C Issuer and each Lender to make its the initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative the Agent’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 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 reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerAgreement;
(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 evidencing (A) the Administrative Agent may require evidencing 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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications certifications, as the Administrative Agent may reasonably require request, to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) favorable opinions of (i) Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP, counsel to the Loan Parties and (ii) general corporate counsel to the Loan Parties, in each case addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent 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, (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, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby to occur on the Closing Date, and (D) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect;
(viii) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory to the Agent evidencing that the Existing Credit Agreement has been, or concurrently with the Closing Date is being, terminated, all obligations thereunder are being paid in full (other than contingent obligations that are not yet due and Existing Letters of Credit that will constitute Letters of Credit hereunder or are cash collateralized or backstopped as required thereunder), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(ix) the Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) the Facility Guaranty, duly executed by each Loan Party party thereto;
(xi) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Agent of all Inventory of the Loan Parties, the results of which are satisfactory to the Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Agent;
(xii) results of searches or other evidence reasonably satisfactory to the 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, except for Permitted Encumbrances and Liens for which termination statements, releases, satisfactions, discharges or subordination agreements, as applicable, reasonably satisfactory to the Agent are being tendered concurrently with the Closing Date or with respect to which other arrangements satisfactory to the Agent have been made;
(xiii) Uniform Commercial Code financing statements, required by law to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents (to the extent such Liens can be created or perfected by the filing of such financing statements) and the Agent shall have been authorized to file, register or record such financing statements on the Closing Date; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require;
(b) after giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $250,000,000;
(c) the Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the quarter ended on January 30, 2016 and executed by a Responsible Officer of the Borrower;
(d) there shall not have been any Material Adverse Effect since the date of the Audited Financial Statements;
(e) the Agent shall have received and be reasonably satisfied with the Consolidated income statement, balance sheet, and statement of cash flow, on a quarterly basis for the period commencing on the Closing Date and ending with the end of the Fiscal Year in which the Closing Date occurs and on an annual basis for the 2016 through 2018 Fiscal Years (it being understood that such projected financial information is subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties, that no assurance is given that any particular projections will be realized, that actual results may differ and that such differences may be material);
(f) there shall not be pending any litigation or other proceeding pending before any Governmental Authority that challenges the legality of, or otherwise seeks to enjoin, the transactions contemplated hereby;
(g) the consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(h) all fees required to be paid to the Agent or the Arranger on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full or, in each case, will be paid substantially concurrently with the initial funding of the Loans hereunder;
(i) the Borrower shall have paid all reasonable and documented fees, charges and out-of-pocket disbursements of counsel to the Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such reasonable and documented 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 Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Agent) or, in each case, will be paid substantially concurrently with the initial funding of the Loans hereunder;
(j) the Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act in each case, the results of which are satisfactory to the Agent; and
(k) no material adverse changes in governmental regulations or governmental policies affecting any Loan Party or, to the extent related to the extensions of credit hereunder, any Credit Party shall have occurred prior to the Closing Date. Without limiting the generality of the provisions of Section 9.04, 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 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 (Foot Locker, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension Term 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, 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 Lenders:):
(i) executed counterparts of this Agreement each properly executed by a Responsible Officer of the signing Loan Party (other than any Electing Foreign Guarantor) and the Guaranty, sufficient Lenders in such number for distribution to as the Administrative Agent, each Lender and the BorrowerAgent may request;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note.[Reserved];
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party (other than any Electing Foreign Guarantor) as the Administrative Agent may require evidencing (A) the authority of each Loan Party (other than any Electing Foreign Guarantor) 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 be become a partyparty and each in form and substance reasonably satisfactory to the Agent;
(iv) copies of each Loan Party’s (other than any Electing Foreign Guarantor) Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require request as to evidence that good standing in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP addressed to the Agent and each Lender on the Closing Date, as to such matters concerning the Loan Party is duly organized or formedParties (other than any Electing Foreign Guarantor) and the Loan Documents as the Agent may reasonably request, in form and that each substance reasonably satisfactory to the Agent;
(vi) a certificate of a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.1(h) and its Subsidiaries are validly existing4.1(i) have been satisfied, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease (B) that there has been no event or operation circumstance since the date of properties the Audited Financial Statements that has had or the conduct of its business requires such qualification, except to the extent that failure to do so could not be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties, on a Consolidated basis, as of the Closing Date after giving effect to the Transactions, and (D) to the knowledge of such Responsible Officer, that all consents, licenses or approvals required in connection with the execution, delivery and performance by the Loan Parties (other than any Electing Foreign Guarantor) of the Loan Documents to which they are party, if any, have been obtained and are in full force and effect;
(vii) subject to Section 6.15, evidence reasonably satisfactory to the Agent that all insurance required to be maintained pursuant to the Loan Documents and all certificates and endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect;
(viii) a payoff letter from the agent under the Existing Term Loan Facility reasonably satisfactory in form and substance to the Agent evidencing that such loan facility has been terminated, all obligations paid in full, and all Liens securing obligations of the Loan Parties under such facility have been or concurrently with the Closing Date are being released;
(ix) subject to Section 6.15, the Security Documents (other than Mortgages and Control Agreements (as such term is defined in the Guaranty and Security Agreement) to be delivered post-closing) and all other Loan Documents (to the extent to be executed on the Closing Date), each duly executed by the applicable Loan Parties (other than any Electing Foreign Guarantor);
(x) the ABL Intercreditor Agreement, dated as of the date hereof, and fully executed by the ABL Agent, the Agent, and acknowledged by the Loan Parties (other than any Electing Foreign Guarantor);
(xi) results of searches or other evidence reasonably satisfactory to the 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 (other than any Electing Foreign Guarantor), except for Liens permitted by Section 7.1 and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, in each case satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent for the delivery of such termination statements have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements reasonably requested by the Agent to be filed, registered or recorded to create or perfect the first priority Liens (subject to the ABL Intercreditor Agreement) intended to be created under the Loan Documents and (B) subject to Section 6.15, control agreements to the extent required under the Security Documents; and
(xiii) the management rights letter, dated as of the date hereof, among the Borrower and the Agent, as amended, amended and restated, supplemented or otherwise modified from time to time (the “VCOC Management Rights Agreement”).
(b) [Reserved].
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 PartyCo-Borrower, 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 Agreement, and the Guarantyeach Security Agreement, together with related UCC-1 financing statements, intellectual property filings and stock or other appropriate certificates, if applicable, for 100% of all Equity Interests of each Domestic Subsidiary and for 65% of all Equity Interests of each Foreign Subsidiary and stock or other appropriate powers, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCo-Borrowers;
(ii) a Note executed by the Borrower Co-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 Co-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 Co-Borrower is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party Co-Borrower is duly organized or formed, and that each of the Co-Borrower and its Subsidiaries are 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 Xxxxxx Xxxxx LLP, counsel to the Co-Borrowers, addressed to the Administrative Agent and each Lender, as to matters concerning the Co-Borrowers and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate of a Responsible Officer of each Co-Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Co-Borrower and the validity against such Co-Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent 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;
(viii) a duly completed Perfection Certificate, signed by a Responsible Officer of the Parent;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Co-Borrowers shall have paid all 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 Attorney Costs as shall constitute its reasonable estimate of 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 Co-Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before August 28, 2009.
(e) With respect to each parcel of real property owned by any Co-Borrower on the date hereof and for which a Mortgage was previously delivered to Administrative Agent in connection with the Existing Credit Agreement or any predecessor credit agreement, a duly executed Amendment to Mortgage providing for the continuation of the fully perfected Lien, in favor of the Administrative Agent, in all right, title and interest of such Co-Borrower in such real property. 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 (Ennis, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement and the GuarantyGuaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrowers;
(ii) a Note Notes executed by the Borrower Borrowers in favor of each Lender requesting a Note.Notes;
(iii) such certificates of resolutions or other action, equivalent action and incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require reasonably request evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require request to evidence that each Loan Party is duly organized or formed, validly existing and that each of the Borrower and its Subsidiaries are validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownershipof organization;
(v) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, lease (B) that there has been no event or operation circumstance since the date of properties the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the conduct of its business requires such qualificationaggregate, a Material Adverse Effect; (C) the current Debt Ratings and (D) that, except as set forth on Schedule 5.06(b), there are no actions, suits, investigations or proceedings pending or, to the extent knowledge of the Company, threatened in any court or before any arbitrator or governmental authority that failure to do so could not would reasonably be expected to have a Material Adverse Effect;; and
(vi) opinions of (i) Tarrant Sibley, Esq., Senior Vice President and Deputy General Counsel of the Company, substantially in the form of Exhibit I-1 hereto, (ii) Xxxxx Xxxxxxxxx, Vice President, European Legal General Secretary, Hasbro SA, substantially in the form of Exhibit I-2 hereto and (iii) Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, special New York counsel to the Loan Parties, substantially in the form of Exhibit I-3 hereto.
(b) All accrued and invoiced fees and expenses of the Lead Arrangers, the Administrative Agent and the Lenders (including the fees and expenses of counsel for the Administrative Agent) required to be paid on or before the Closing Date shall have been paid.
(c) All obligations under the Existing Credit Agreement (other than obligations in respect of Existing Letters of Credit which shall be deemed to be Letters of Credit issued under this Agreement pursuant to Section 10.20) shall have been paid in full and all commitments thereunder of lenders party thereto who are not parties to this Agreement shall have been terminated and all commitments thereunder of the Lenders party to this Agreement shall be evidenced only by this Agreement. Without limiting the generality of the provisions of Section 9.04, 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 Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction (or waiver in accordance with Section 10.01) 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) copies of originals electronically transmitted unless otherwise specified, each properly executed by a Responsible Officer of the signing each applicable Loan Party, each dated the Closing Funding Date (or, in the case of certificates of governmental officials, a recent date before the Closing Funding Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed and delivered counterparts of this the Guaranty Agreement and of the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerGuarantor;
(ii) a Note executed by customary legal opinion of Xxxxx Xxxxx L.L.P., counsel to the Borrower Loan Parties, addressed to the Administrative Agent and each Lender, covering only the matters set forth on Exhibit F and otherwise in favor of each Lender requesting a Note.form reasonably acceptable to the Administrative Agent;
(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) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party (and any Person that acts on behalf of a Loan Party) is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 their business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(iv) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(b) and (c) and 4.03(a) and (b) have been satisfied;
(v) a duly completed Compliance Certificate as of the last day of the most recently ended fiscal quarter (or fiscal year) of the Borrower for which financial statements are available, signed by a Responsible Officer of the Borrower and demonstrating pro forma compliance with the financial covenants set forth in Section 7.08 (after giving effect to the Simplification Transaction and the incurrence of Indebtedness and the application thereof on the Funding Date); and
(vi) a certificate as to the solvency of the Borrower individually and the Loan Parties and their Subsidiaries taken as a whole (after giving effect to the Simplification Transaction and the incurrence of Indebtedness and the application thereof on the Funding Date) from the chief financial officer of EnLink Manager.
(b) The Simplification Transaction shall have been consummated prior to or concurrently with the initial Credit Extension hereunder, and the Administrative Agent shall have received on the Funding Date, evidence satisfactory to it of such concurrent consummation of the Simplification Transaction in accordance with the Agreement and Plan of Merger (as amended, restated, supplemented or otherwise modified in a manner not materially adverse to the Lenders unless the consent of the Supermajority Lenders has been obtained), without the waiver or modification of any condition precedent thereto that is materially adverse to the Lenders unless the consent of the Supermajority Lenders is obtained.
(c) There shall not have occurred since December 31, 2017 any event or condition that has had a Material Adverse Effect.
(d) To the extent requested by any Lender at least five Business Days prior to the proposed Funding Date, the Borrower and its Subsidiaries shall have provided any appropriate updates to the documentation and other information previously provided to the Lenders that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and the Beneficial Ownership Regulations.
(e) The Administrative Agent shall have received on the Funding Date satisfactory evidence that, prior to or concurrently with the initial Credit Extension hereunder on the Funding Date, (i) all obligations under the Existing ENLK Credit Agreement and the Existing ENLC Credit Agreement and all related loan documents and commitments have been or concurrently with the Funding Date are being paid in full, retired, and terminated, in each case other than (x) contingent obligations as to which no claim has been made and (y) letters of credit issued by L/C Issuers that will be deemed issued hereunder on the Funding Date, and (ii) arrangements reasonably satisfactory to the Administrative Agent have been made for the release of all Liens securing obligations under the Existing ENLC Credit Agreement.
(f) Any fees required to be paid on or before the Funding Date pursuant to the Fee Letters or the other Loan Documents shall have been paid.
(g) The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested) to the extent (i) required to be paid by the Borrower pursuant to Section 10.04 and (ii) invoiced to the Borrower at least two Business Days prior to the Funding Date.
(h) The Funding Date shall have occurred on or before March 31, 2019.
(i) The Administrative Agent shall have received a funds flow memorandum in form and substance reasonably satisfactory to it. 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 4.02, 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 Funding Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Co-Administrative Agent’s Agents’ 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, if applicable, each dated the Closing Date such date (or, in the case of certificates of governmental officials, a recent date before the Closing Datesuch date) and each in form and substance satisfactory to the Co-Administrative Agent Agents and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantyAgreement, sufficient in number for distribution to the Administrative each 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 Co-Administrative Agent Agents and the Lenders 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) such documents and certifications as the Co-Administrative Agent Agents and the Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 Xxxxx Day, counsel to the Loan Parties, addressed to the Co-Administrative Agents and each Lender, in form and substance reasonably satisfactory to the Co-Administrative Agents;
(vi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by any 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 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;
(viii) a certificate attesting to the Solvency of the Borrower and its Subsidiaries on a consolidated basis, after giving effect to the consummation of the transaction contemplated hereby, from the Borrower’s Chief Financial Officer or Executive Vice President-Finance and Administration; and
(ix) such other assurances, certificates, documents, consents or opinions as the Co-Administrative Agents may reasonably require.
(b) All fees required to be paid by the Borrower in connection with the Loan Documents on or before the Closing Date shall have been paid in full.
(c) All accrued reasonable expenses of the Co-Administrative Agents and the Lenders, including, without limitation, Attorney Costs for which the Borrower has received a reasonably detailed invoice at least 5 days prior to the Closing Date, shall have been paid in full.
(d) The absence of any action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or Governmental Authority that (i) could reasonably be expected to materially and adversely affect the Borrower and its Subsidiaries, (ii) purports to adversely affect the ability of the Borrower or any other Loan Party to perform their respective obligations under the Loan Documents, or (iii) purports to affect the legality, validity or enforceability of any Loan Document.
(e) There shall not have occurred a material adverse change in the business, assets, liabilities (actual or contingent), operations or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole since December 31, 2008.
Appears in 1 contract
Samples: Credit Agreement (Timken Co)
Conditions of Initial Credit Extension. . The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder the Term Loan pursuant to Section 2.01 is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which (in the case of clauses (ii), (iii), (iv), (v), (vi) and (ix)(B)) shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each of which (in the case of clauses (iv), (v), (vi) and (ix)(B)) shall be 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 and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower[intentionally omitted];
(ii) a Note executed by favorable opinion of Xxxxx Day, counsel to the Borrower Loan Parties, addressed to the Administrative Agent and each Lender, in favor of each Lender requesting a Note.form and substance reasonably satisfactory to the Administrative Agent;
(iii) such certificates a favorable opinion of resolutions or other actionlocal counsel to the Loan Parties in Texas, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as addressed to the Administrative Agent may require evidencing and each Lender in form and substance reasonably satisfactory to 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 partyAdministrative Agent;
(iv) such documents a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.03(a) and certifications (b) that are required to be satisfied on or prior to the Closing Date have been satisfied, and (B) as to the absence of any action, suit or proceeding pending or, to the knowledge of the Company, threatened in any court or before any arbitrator or Governmental Authority relating to this Agreement, the other Loan Documents or the credit facilities hereunder;
(v) a certificate signed by the chief financial officer, treasurer or chief accounting officer of the Company, certifying that the Company individually is Solvent, and the Loan Parties taken as a whole are Solvent, in each case as of the Closing Date after giving effect to this Agreement, the other Loan Documents and Indebtedness pursuant hereto, the consummation of the Project Star Acquisition and the incurrence of the Term Loan;
(vi) (A) an executed authorization to share insurance information and (B) evidence that all insurance (including flood insurance, if applicable) required to be maintained pursuant to the Loan Documents has been obtained and is in effect, including endorsements naming the Administrative Agent (on behalf of the Secured Parties) as an additional insured or lender’s loss payee, as the case may reasonably require be, on all insurance policies maintained with respect to evidence that properties of the Company or any Loan Party constituting part of the Collateral;
(vii) UCC financing statements for filing in all places required by applicable law to perfect the Liens of the Administrative Agent for the benefit of the Secured Parties under the Security Instruments as a perfected Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements;
(viii) UCC search results with respect to each Loan Party is duly organized or formed(provided that promptly after the Closing Date the Borrower shall remove any Liens which are not Permitted Liens);
(ix) with respect to each Financed Property identified on Schedules 1.01(C) as of the Closing Date, and that each of the Borrower following, each of which shall be originals or telecopies (followed promptly by originals unless copies are otherwise specified) each in form and its Subsidiaries substance reasonably acceptable to the Administrative Agent:
(A) a copy of a FIRREA Appraisal;
(B) (x) an original Mortgage dated as of the Closing Date properly executed by a Responsible Officer of the signing Loan Party and evidence of the proper recordation of such Mortgage in the appropriate filing office (or delivery of such Mortgage to the applicable title company for recordation), and (y) the Closing Date Real Estate Support Documents (including originals thereof where required by applicable Law) with respect to such Financed Property;
(C) evidence that such Financed Property is not a Flood Hazard Property or the Administrative Agent has determined that such Financed Property is not subject to Flood Requirements under applicable Law;
(D) a copy of each Lease of such Financed Property, if any, and any sublease or Memorandum of Lease associated therewith, if any; and
(x) evidence of payment of all real estate recordation fees and taxes with respect to perfecting the Liens on Collateral.
(b) The Administrative Agent shall have received evidence in form reasonably satisfactory to it that the Project Star Acquisition shall have been consummated on or prior to the Closing Date in accordance with the Project Star Leases in all material respects and all applicable requirements of law, without giving effect to any amendments, consents or waivers by the Company that are validly existingmaterially adverse to the Administrative Agent or the Lenders without the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any reduction in the purchase price of, or consideration for, the Project Star Acquisition is not material and adverse to the interests of the Administrative Agent or the Lenders, so long as such reduction in the cash consideration is less than 10.0% of the original purchase price).
(c) (i) Upon the reasonable request of any Lender made at least ten (10) days prior to the Closing Date, the Company shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, in good standing each case at least five (5) Business Days prior to the Closing Date with respect to any Person that will be a Loan Party on the Closing Date but was not a Loan Party on the Effective Date and qualified (ii) at least three (3) Business Days prior to engage the Closing Date, any Person (a) that will be a Loan Party on the Closing Date but was not a Loan Party on the Effective Date and (b) that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in business in each jurisdiction where its ownershiprelation to such Loan Party.
(d) Any fees required to be paid on or before the Closing Date shall have been paid.
(e) Unless waived by the Administrative Agent, lease or operation the Company shall have paid all accrued fees, charges and disbursements of properties or counsel to the conduct of its business requires Administrative Agent (directly to such qualification, except 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 failure to do so could such estimate shall not reasonably thereafter preclude a final settling of accounts between the Company and the Administrative Agent).
(f) The Closing Date shall occur on or before June 30, 2021. 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 4.02, each Lender that has funded a portion of the Term Loan shall be expected 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 Material Adverse Effect;Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Each of the Administrative Agent and each Lender that has signed this Agreement hereby acknowledges and agrees that the conditions set forth in clauses (a)(vi), (a)(ix)(A) and (a)(ix)(C) above have been satisfied as of the Effective Date.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 originalsoriginals unless otherwise agreed to by the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) 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 GuarantyAgreement, 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 or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are each Guarantor 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 would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Gxxxxx, Dxxx & Cxxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in a form reasonably acceptable to the Administrative Agent;
(vi) a favorable opinion of in-house counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in a form reasonably acceptable to the Administrative Agent;
(vii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all material 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 material consents, licenses and approvals shall be in full force and effect, or (B) stating that no such material consents, licenses or approvals are so required;
(viii) 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 or waived and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) a duly completed Compliance Certificate as of June 30, 2004, signed by a Responsible Officer of the Borrower;
(x) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and that the Existing Letters of Credit shall constitute Letters of Credit hereunder; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid 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 one firm of legal counsel to the Administrative Agent and the Syndication Agent to the extent invoiced at least one Business Day prior to the Closing Date, plus such additional invoiced 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 Closing Date shall have occurred on or before August 31, 2004. Without limiting the generality of the provisions of Section 9.04, 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 reasonably acceptable or reasonably 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 Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 and the GuarantyAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Loan Party and the BorrowerParent;
(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 and the Parent 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 or the Parent is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party and the Parent is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan Party is validly existing, in good standing (to the extent good standing is applicable) 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 (i) Dentons US LLP, counsel to the Loan Parties and the Parent and (ii) local counsel to the Loan Parties and the Parent located in Bermuda, Ireland and Nevada, each addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(vi) a certificate of a Responsible Officer of each Loan Party and the Parent 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 Parent and the validity against such Loan Party and the Parent 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 Agent certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Net Leverage Ratio as of the last day of the fiscal quarter of the Parent most recently ended prior to the Closing Date;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Parent ended on September 30, 2015, signed by a Responsible Officer of the Borrower Agent; and
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all 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 each Borrower and the Administrative Agent).
(d) The Borrowers shall have terminated all commitments and shall have repaid all amounts accrued under the Bilateral Credit Facilities. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (James Hardie Industries PLC)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, facsimiles 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 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 reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrower Borrowers in favor of each Lender requesting a Note.;
(iii) such certificates 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 (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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion(s) of Proskauer Rose LLP, counsel to the Loan Parties on the Closing Date, addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (1) that the conditions specified in Sections 4.02(a) and 4.02(b)4.02(a) and 4.02(b) have been satisfied, (2) 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, (3) to the Solvency of the Loan Parties, on a consolidated basis, as of the Closing Date after giving effect to the Transactions, and (4) either that (x) no consents, licenses 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, or (y) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) certificates of insurance evidencing insurance required to be maintained by Section 6.02(a);6.02(a);
(viii) a payoff letter from the agent for the lenders under the Existing Term Loan Agreement reasonably satisfactory in form and substance to the Agent evidencing that the Existing Term Loan Agreement has been or substantially concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Term Loan Agreement have been or substantially concurrently with the Closing Date are being released;
(ix) the Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) the Intercreditor Agreement, duly executed by all applicable parties;
(xi) the Confirmation Agreement, Facility Guaranty, Perfection Certificate, Grant of Security Interest in Trademarks, Disbursement Letter, Post-Closing Letter and Borrowing Base Certificate, each duly executed by the applicable Loan Parties;
(xii) results of searches or other evidence reasonably satisfactory to the 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, 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 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 Uniform Commercial Code 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 and (B) the DDA Notifications, Credit Card Notifications required pursuant to Section 6.116.11 hereof; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) After giving effect to the Transactions, including, without limitation (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment (including, without limitation, the Existing Letters of Credit), Availability, after giving pro forma effect to the Closing Date Dividend, shall be not less than $100,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on August 25, 2016, and executed by a Responsible Officer of the Lead Borrower.
(d) Since December 31, 2015, no Material Adverse Effect has occurred.
(e) The Agent shall have received and be satisfied with (i) a detailed forecast for the period commencing on the Closing Date and through and including the Maturity Date, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow (on a monthly basis for the 2016 Fiscal Year, and on an annual basis for each Fiscal Year thereafter), each prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices and (ii) such other information (financial or otherwise) reasonably requested by the Agent.
(f) 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.
(g) Each Exiting Lender shall have received, or substantially concurrently with the Closing Date will receive, payment of the principal balance of the Loans (as defined in the Existing Credit Agreement) held by such Exiting Lender outstanding on the date hereofClosing Date plus amounts accrued and unpaid in respect of interest, fees and expenses payable to such Exiting Lender as of the date hereofClosing Date and the commitment of such Exiting Lender to extend credit under the Existing Credit Agreement shall be terminated.
(h) The consummation of the Transactions shall not violate any applicable Law or any Organization Document.
(i) All fees and expenses required to be paid to Wxxxx Fargo (in its capacity as the Agent or an Arranger, as applicable), on or before the Closing Date shall have been paid in full, and all fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Agent to the extent invoiced 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 Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Agent).
(k) The Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(l) The Loan Parties shall have received not less than $346,500,000 in gross proceeds in connection with the Term Loan Agreement on the Closing Date. Without limiting the generality of the provisions of Section 9.049.04, for purposes of determining compliance with the conditions specified in this Section 4.014.01, 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 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 Credit Extension. The obligation of the any L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Receipt by the Administrative Agent’s receipt Agent of the following, each :
(i) executed counterparts of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifiedthis Agreement and the other Loan Documents, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orParty and, in the case of certificates of governmental officialsthis Agreement, by each Lender holding 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 Term Loan Commitment and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrowerrequisite Lenders holding Revolving Commitments;
(ii) copies of the Organization Documents of each Loan Party certified to be true and complete as of a Note executed recent date by the Borrower in favor appropriate Governmental Authority of each Lender requesting the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a Note.secretary or assistant secretary of such Loan Party to be true and correct as of 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 require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization or formation;
(v) favorable opinions of Simpson Thacher and Bartlett LLP, special counsel to xxx Xxxx Xxxxxxs and Xxxxxxxpher C. Cambria, Senior Vice President, Generax Xxxxxxx xxx Xxxxxxxxy of the Borrower and Holdings, each addressed to the Administrative Agent and each Lender;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying (A) 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 (B) the current Debt Ratings;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 5.02(a) and (b) have been satisfied;
(viii) a copy of the filed merger certificate evidencing the merger of Saturn VI Acquisition Corp. into The Titan Corporation;
(ix) a copy of the Titan Purchase Agreement and such other material documents executed or delivered in connection therewith as may be reasonably requested by the Administrative Agent; and
(x) unless otherwise agreed by the Administrative Agent, (A) the results of a recent search, by a Person satisfactory to the Administrative Agent, of all effective Uniform Commercial Code financing statements (or equivalent filings) made with respect to any personal or mixed property of each Loan Party in the jurisdiction where its ownershipof organization of such Loan Party, lease together with copies of all such filings disclosed by such search, and (B) Uniform Commercial Code termination statements (or operation similar documents) for filing in all applicable jurisdictions as may be necessary to terminate any effective Uniform Commercial Code financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of properties Permitted Liens); 57
(b) Any fees required to be paid pursuant to Section 2.09 on or before the conduct Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of its business requires such qualification, except counsel to the Administrative Agent to the extent invoiced prior to the Closing Date.
(d) All material governmental and third party approvals necessary in connection with the Titan Acquisition and the financing contemplated hereby 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 failure would restrain, prevent or otherwise impose material adverse conditions on the Titan Acquisition or the financing thereof.
(e) The Borrower shall have availability under the Revolving Commitments of at least $400,000,000 immediately after giving effect to do so could not the Titan Acquisition.
(f) The Indebtedness of The Titan Corporation and its Subsidiaries described on Schedule 5.01(f) shall have been repaid in full on terms and conditions reasonably be expected satisfactory to the Administrative Agent.
(g) The Titan Acquisition shall have a Material Adverse Effect;been consummated in accordance with the Titan Purchase Agreement and all material conditions to the Titan Acquisition set forth in the Titan Purchase Agreement shall have been satisfied or the fulfillment of any such material conditions shall have been waived with the consent of Administrative Agent.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 Agreement, and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note copies of all UCC searches of the Borrower and its Domestic Subsidiaries, each such search showing no Liens except Permitted Liens;
(iii) Revolving Loan Notes executed by the Borrower in favor of each Lender requesting a Revolving Loan Note.;
(iiiiv) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender;
(v) 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;
(ivvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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;
(vii) favorable opinions of Xxxxxxxx & Xxxxxx L.L.P., and general counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit D and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viii) 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;
(ix) 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;
(x) a solvency certificate signed by the Vice President and Treasurer of the Borrower in form and substance satisfactory to the Administrative Agent; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to 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) There shall not have occurred a material adverse change (x) in the operations, business, properties, liabilities (actual or contingent), or condition (financial or otherwise) of the Borrower and its Subsidiaries, taken as a whole, since May 31, 2007 or (y) in the facts and information regarding such entities represented to date.
(e) The initial Credit Extension shall have occurred on or before August 31, 2007. Without limiting the generality of the last paragraph of Section 9.03 or the provisions of Section 9.04, 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 Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 and the GuarantyGuaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrowers;
(ii) a Note Notes executed by the Borrower Borrowers in favor of each Lender requesting a Note.Notes;
(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) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower Borrowers and its Subsidiaries are the other Loan Parties is validly existing, and to the extent applicable, 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 (i) Xxxxxxx Xxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H-1, (ii) NautaDutilh, Dutch and Curaçao counsel to the Loan Parties, addressed to the Administrative Agent and each Lender that is a Lender on the date hereof, as to the matters set forth in Exhibits H-2 and H-3 respectively, (iii) XxXxxx Xxxxx LLP, Canadian counsel to the Loan Parties, addressed to the Administrative Agent and each Lender as to the matters set forth in Exhibit X-0, xxx (xx) Xxxxxxxx Xxxxxxx XXX, XX counsel to the Loan Parties, addressed to the Administrative Agent and each Lender as to the matters set forth in Exhibit H-5, and in each case such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate of a Responsible Officer of each Borrower 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 Parent 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;
(viii) a duly executed and delivered copy of the Subordination Agreement reasonably satisfactory to the Administrative Agent subordinating all intercompany indebtedness among the Loan Parties to the Obligations substantially in the form of Exhibit G;
(ix) a duly executed and delivered copy of the Contribution and Indemnity Agreement among the Guarantors apportioning the rights and obligations of each Guarantor substantially in the form of Exhibit H; and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Parent shall have paid all 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 Parent and the Administrative Agent). Without limiting the generality of the provisions of Section 9.04, 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 Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 LendersAgent:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead 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 (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 be 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 be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 Xxxx Xxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(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, (C) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect and (D) to the Solvency of the Loan Parties as of the Effective Date after giving effect to the transactions contemplated hereby;
(vii) a duly completed Compliance Certificate as of the last day of the Fiscal Quarter of the Lead Borrower and its Subsidiaries most recently ended prior to the Effective Date, signed by a Responsible Officer of the Lead Borrower;
(viii) a Borrowing Base Certificate dated the Effective Date, relating to the month ended on February 28, 2013, and executed by a Responsible Officer of the Lead Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agents required under the Loan Documents have been obtained and are in effect;
(x) the Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(xi) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xii) 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 Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by Law or reasonably requested by the Collateral 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 Collateral Agent and (B) the Credit Card Notifications and Blocked Account Agreements required pursuant to Section 6.13 hereof; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(c) The Administrative Agent shall have received and be satisfied with such other information (financial or otherwise) reasonably requested by the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Rue21, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantyAgreement, 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.Note (to the extent requested at least three (3) 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 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 or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is validly existing and in good standing in its jurisdiction of incorporation;
(v) a favorable opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Borrower, addressed to the Administrative Agent and each Loan Party is duly organized or formedLender, and that each in customary form; and
(vi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and its Subsidiaries are validly existing(b) have been satisfied, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease (B) that there has been no event or operation circumstance since the date of properties the Audited Financial Statements that has had or the conduct of its business requires such qualification, except to the extent that failure to do so could not would be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect;, and (C) a calculation of the Consolidated Net Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date.
(i) 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, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) days prior to the Closing Date and (ii) at least three (3) days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to the Borrower (subject, in the case of this clause (ii), to any applicable exceptions or limitations applicable to a public company).
(c) Any fees required to be paid on or before the Closing Date shall have been paid on or substantially concurrently with the Closing Date provided that the payment of fees and expenses of counsel shall be subject to the receipt of a reasonably detailed invoice with respect thereto at least two (2) Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid, on or substantially concurrently with the Closing Date, all fees, charges and disbursements of one counsel to the Administrative Agent and the Lenders collectively (directly to such counsel if requested by the Administrative Agent) to the extent invoiced in reasonable detail at least two (2) Business Days prior to or 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 1 contract
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension 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, 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 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 and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead 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 (A) the authority of such 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 be become a party;
(iv) copies of the Organization Documents of each Loan Party 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 Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Dechert LLP, counsel to the Loan Parties, addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(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, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect;
(viii) a payoff letter from the lenders under the Existing Credit Agreement satisfactory in form and substance to the Agent evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xi) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Agent of all Inventory of the Loan Parties, the results of which are satisfactory to the Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Agent;
(xii) results of searches or other evidence reasonably satisfactory to the 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, 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 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 Uniform Commercial Code 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) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements as required by the Agent; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $1,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the week ended on November 2, 2012, and executed by a Responsible Officer of the Lead Borrower.
(d) The Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the Audited Financial Statements.
(e) The Agent shall have received and be satisfied with the Borrowers’ Business Plan and such other information (financial or otherwise) reasonably requested by the Agent.
(f) The Agent shall have received evidence that the Borrowers have entered into agreements with Wxxxx Fargo Bank, National Association with respect to the Existing Letters of Credit (which agreements shall be reasonably satisfactory to the Agent) and that the Borrowers have made arrangements satisfactory to the Agent to cash collateralize the outstanding amount of all obligations with respect to the Existing Letters of Credit on the Closing Date.
(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.
(h) 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 to the Agent on or before the Closing Date shall have been paid in full, and all fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(k) The Borrowers shall have paid all fees, charges and disbursements of counsel to the 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 Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Agent).
(l) The Agent and the Lenders shall have completed satisfactory background checks of the Loan Parties’ shareholders and management and shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(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 since September 30, 2012.
(n) There shall not have occurred any disruption or material adverse change in the United States financial or capital markets in general that has had, in the reasonable opinion of the Agent, a material adverse effect on the market for loan syndications or adversely affecting the syndication of the Loans since September 30, 2012.
(o) The Closing Date shall have occurred on or before November 30, 2012. The Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.04, 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 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 (Bluefly Inc)
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension 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 Agreement, the Guaranty and the GuarantyContribution 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 or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are each Consolidated Subsidiary 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 PC or other law firm reasonably acceptable to Administrative Agent, as counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H and such other matters concerning the Loan Parties and the Loan Documents as the 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 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 December 31, 2021 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(viii) a duly completed Compliance Certificate calculated as of the last day of the fiscal quarter of the Borrower ended on June 30, 2022 on a pro forma basis to take into account the Loans made on the Closing Date, signed by a Responsible Officer of the Borrower;
(i) 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, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least five (5) days prior to the Closing Date; and (ii) at least five (5) days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower; and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees required to be paid 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 Closing Date shall have occurred on or before August 31, 2022.
(e) The Loans of any Lender (as each of those terms are defined in the Existing Credit Agreement) under the Existing Credit Agreement which is not continuing as a Lender under this Agreement shall have been repaid in full or will be repaid in full simultaneously with the initial Credit Extension hereunder. 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 Credit Extension. The obligation of the L/C Issuer and each the Lender to make its initial Credit Extension 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, facsimiles 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 PartyParty or the Lender, 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 LendersLender:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrower Borrowers in favor of each Lender requesting a Note.the Lender;
(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 be become a party;
(iv) copies of each Loan Party’s Organization Documents 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 Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Dxxxxx & Wxxxxxx LLP, counsel to the Loan Parties, addressed to the Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Lender may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(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, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Lender required under the Loan Documents have been obtained and are in effect;
(viii) the Security Agreement, the Blocked Account Agreements, the DDA Notifications, the Credit Card Notifications and certificates evidencing any stock being pledged under any of the foregoing, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(ix) all other Loan Documents required to be executed pursuant to the terms hereof as of such date, each duly executed by the applicable Loan Parties;
(x) results of searches or other evidence reasonably satisfactory to the Lender (in each case dated as of a date reasonably satisfactory to the Lender) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances;
(xi) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Lender 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 Lender, (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ material securities and investment accounts, and (D) Collateral Access Agreements as required by the Lender (but in no case with respect to any Store); and
(xii) such other assurances, certificates, documents, consents or opinions as the Lender reasonably may require.
(b) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $15,000,000.
(c) The Lender shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on May 26, 2012, and executed by a Responsible Officer of the Lead Borrower.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 and the GuarantyAgreement, 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 Note.Notes;
(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 or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Borrower is duly organized or formed, formed and that each of the Borrower and its Subsidiaries are is validly existing, in good standing and qualified to engage in business in Delaware and California;
(v) a favorable opinion of Cravath, Swaine & Moore LLP, counsel to the Borrower, xxxxxssed to the Administrative Agent and each jurisdiction where its ownershipLender, lease or operation of properties as to the matters concerning the Borrower and the Loan Documents as the Administrative Agent or the conduct Required Lenders may reasonably request; and
(vi) a certificate of its business requires such qualificationa Responsible Officer of the Borrower certifying (A) that the condition specified in Section 4.02(a) has been satisfied, except to (B) that there has been no event or circumstance since the extent date of the Audited Financial Statements that failure to do so has had or could not be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect, (C) if any Debt Ratings are then in effect, the current Debt Ratings, and (D) that no Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document;
(b) Any fees required to be paid on or before the Closing Date, including pursuant to any Fee Letter, shall have been paid.
(c) At least three Business Days prior to the Closing Date, the Borrower shall have provided to the Administrative Agent and the Lenders all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, that has been requested in writing not less than five Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all 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). 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 (Qualcomm Inc/De)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, 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 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 and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead 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 (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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) favorable opinions, in each case addressed to the Agent and each Lender, of Xxxxxxx Xxxxxx & Roseblatt LLC and Xxxxxxxxx Xxxxxxx LLP, counsel to the Loan Parties, as to such matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Lead Borrower and its Subsidiaries most recently ended prior to the Closing Date, signed by a Responsible Officer of the Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect;
(ix) the Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xi) (A) appraisals (based on net liquidation value), by Xxxxxx Xxxxxxxx Group or such other third party appraiser reasonably acceptable to the Agent, of all Inventory of the Borrowers, the results of which are satisfactory to the Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Agent;
(xii) results of searches or other evidence reasonably satisfactory to the 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, 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 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 Uniform Commercial Code 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) Credit Card Notifications and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements as required by the Agent;
(xiv) the CIT Intercreditor Agreement, duly executed by the Lead Borrower and CIT; and
(xv) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $15,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on July 31, 2011, and executed by a Responsible Officer of the Lead Borrower.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, 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 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 and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the 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 (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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Agent and each Lender, as to such customary matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required as of the Closing Date 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect;
(viii) a payoff letter from the lender under the Existing Credit Agreement satisfactory in form and substance to the Agent evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xi) (A) appraisals (based on net liquidation value) by a third party appraiser engaged by, and reasonably acceptable to the Agent of all Inventory of the Borrower, the results of which are satisfactory to the Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Agent;
(xii) results of searches or other evidence reasonably satisfactory to the 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, 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 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 Uniform Commercial Code 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) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements as required by the Agent; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Liquidity shall be not less than $100,000,000.00.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the Fiscal Month ending April 1, 2023 and executed by a Responsible Officer of the Borrower.
(d) The Agent shall have received (i) the Audited Financial Statements and (ii) unaudited financial statements for the month ending January 28, 2023.
(e) The Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since February 25, 2023.
(f) The Agent shall have received and be satisfied with (i) a detailed forecast for the period commencing on the Closing Date and ending with the end of the then next Fiscal Year, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices and (b) 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.
(h) 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 in any material respect or any Organization Document.
(j) All reasonable and documented fees and expenses required to be paid or reimbursed to the Agent or the Arranger on or before the Closing Date shall have been paid in full, and all reasonable and documented fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(k) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsel to the 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 Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Agent).
(l) The Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, in each case, the results of which are satisfactory to the Agent.
(m) There shall not have occurred any disruption or material adverse change in the United States financial or capital markets in general that has had, in the reasonable opinion of the Agent, a material adverse effect on the market for loan syndications or adversely affecting the syndication of the Loans. Without limiting the generality of the provisions of Section 9.04, 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 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 (Tilly's, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, 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 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 and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the 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 (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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Agent and each Lender, as to such customary matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required as of the Closing Date 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect;
(viii) a payoff letter from the lender under the Existing Credit Agreement satisfactory in form and substance to the Agent evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xi) (A) appraisals (based on net liquidation value) by a third party appraiser engaged by, and reasonably acceptable to the Agent of all Inventory of the Borrower, the results of which are satisfactory to the Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Agent;
(xii) results of searches or other evidence reasonably satisfactory to the 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, 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 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;
(xiii) (A) all documents and instruments, including Uniform Commercial Code 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) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements as required by the Agent; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $40,000,000.00.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ending October 3, 2020 and executed by a Responsible Officer of the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Tilly's, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, 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 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 reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement 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 (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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxx Day, counsel to the Loan Parties, and of certain local counsel to the Loan Parties, in each case, addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent 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, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or would be reasonably expected to have, either individually or in the aggregate, a Closing Date Material Adverse Effect, (C) to the Solvency of the Loan Parties, taken as a whole, as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect;
(viii) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agent evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xi) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Agent;
(xii) results of searches or other evidence reasonably satisfactory to the 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, except for Permitted Encumbrances and Liens for which termination statements and releases or subordination agreements reasonably satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Agent for the delivery of such termination statements and releases have been made;
(xiii) (A) all documents and instruments, including Uniform Commercial Code 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, or concurrently with the Closing Date are, so filed, registered or recorded to the reasonable satisfaction of the Agent, (B) the Credit Card Notifications and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements as requested by the Agent (which requests shall be limited to (i) distribution centers, warehouses and locations in any Landlord Lien State and (ii) locations maintained by any internet fulfillment company in which the Borrower’s inventory may be maintained, provided that, if, after exercising commercially reasonable efforts, the Borrower is unable to obtain Collateral Access Agreements with respect to (x) any retail location, then the Agent shall apply an Availability Reserve in the amount of two (2) months’ rent for such location, and (y) locations maintained by any internet fulfillment company, then any Inventory maintained at such locations shall not be Eligible Inventory); and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) After giving effect to (i) any Loans funded on the Closing Date, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $400,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on October 29, 2011, and executed by a Responsible Officer of the Borrower.
(d) There shall not have occurred since January 29, 2011 (a) any event or condition that has had or would be reasonably expected, either individually or in the aggregate, to have a Closing Date Material Adverse Effect or (b) any action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or governmental authority that would reasonably be expected to have a Closing Date Material Adverse Effect. All of the written information (including the projections delivered to the Agent pursuant to Section 4.01(e) below) furnished to the Agent shall be complete and correct in all material respects and no changes or developments shall have occurred, and no new or additional information, shall have been received or discovered by the Agent regarding the Loan Parties or their respective Subsidiaries or the transactions contemplated hereby after July 30, 2011 that, individually or in the aggregate, would reasonably be expected to have a Closing Date Material Adverse Effect.
(e) The Agent shall have received and be satisfied with (a) detailed financial projections, including, in each case, a Consolidated income statement, balance sheet, statement of cash flow, Availability analysis and business assumptions for the Borrower and its Subsidiaries, on an annual basis for each fiscal year through the Maturity Date, and (b) such other information (financial or otherwise) reasonably requested by the Agent.
(f) The consummation of the transactions contemplated hereby shall not violate any applicable Law applicable to the Loan Parties or any Organization Document of the Loan Parties.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 and the GuarantyAgreement, 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.Note 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 or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in its jurisdiction of organization;
(i) an opinion of in-house counsel for the Borrower, addressed to the Administrative Agent and each Lender, in the form of Exhibit E-1 and (ii) an opinion of Wachtell, Lipton, Rosen, & Kxxx, special counsel for the Borrower, in the form of Exhibit E-2;
(vi) a certificate signed by a Responsible Officer of the Borrower and its Subsidiaries are validly existingcertifying that there has been no event or circumstance since December 31, in good standing and qualified to engage in business in each jurisdiction where its ownership2006, lease that has had or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not be reasonably be expected to have a Material Adverse Effect;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying as to the accuracy and completeness of the Acquisition Documents, copies of which shall be attached thereto, and certifying that the Acquisition shall have been, or substantially simultaneously with the effectiveness of this Agreement shall be, consummated;
(viii) satisfactory evidence that the Existing Credit Facilities shall have been, or will be substantially contemporaneously with the effectiveness of this Agreement, terminated and repaid in full;
(ix) satisfactory evidence that (A) the 364-Day 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 substantially contemporaneously with the effectiveness of this Agreement, consummated; and
(x) such other 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 on or before the Closing Date shall have been paid.
(d) 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 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). Without limiting the generality of the provisions of Section 9.04, 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 Credit Extension. The obligation of the L/C Issuer and each Lender to make its respective initial Credit Extension 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) or electronic copies (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 and the Subsidiary Guaranty, in each case sufficient in number for distribution to the Administrative Agent, each Lender Lender, Parent, 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 or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 & Xxxxxxxx LLP, counsel to the Loan Parties, addressed to Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as 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 Parent, for itself and on behalf of Borrower, certifying (A) that the conditions specified in Sections 5.02(a) and (b) have been satisfied; (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) no action, suit, investigation or proceeding is pending or, the knowledge of any Loan Party, threatened in any court or before any arbitrator or governmental authority related to the transactions contemplated by this Agreement or that could reasonably be expected to have a Material Adverse Effect;
(viii) a duly completed Compliance Certificate certifying compliance with all financial covenants set forth in Section 8.15, in each case prepared as of June 30, 2019, on a pro forma basis, and signed by a Responsible Officer of Borrower and Parent;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(x) such other assurances, certificates, documents, consents or opinions as Administrative Agent, L/C Issuer, Swing Line Lender or Required Lenders may reasonably require.
(i) Upon the reasonable request of any Lender made at least seven (7) days prior to the Closing Date, Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least three (3) Business Days prior to the Closing Date and (ii) at least three (3) Business Days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(c) Any fees required to be paid on or before the Closing Date shall have been paid.
(d) Unless waived by Administrative Agent, Borrower shall have paid all fees, charges and disbursements of counsel to Administrative Agent (directly to such counsel if requested by 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 5.01, 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 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 Credit Extension. The occurrence of the Closing Date, the initial effectiveness of this Agreement and obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement and the GuarantyAgreement, 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 or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are is validly existing, in good standing and qualified to engage in business in the jurisdiction of its incorporation or organization;
(v) a favorable opinion of MxXxxxx Long & Axxxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each jurisdiction where its ownershipLender, lease in form and substance satisfactory to the Administrative Agent, covering enforceability of the Loan Documents and other matters to be agreed upon;
(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, (B) that there has been no event or operation circumstance since the date of properties 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) the calculation of the Consolidated Leverage Ratio as of June 30, 2007;
(vii) a duly completed Compliance Certificate as of June 30, 2007, signed by a Responsible Officer of the Borrower; and
(viii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the conduct Required Lenders reasonably may require.
(b) Any fees required to be paid to the Administrative Agent, the Arranger or any other Lender (whether pursuant to the Fee Letter or otherwise) on or before the Closing Date shall have been paid, it being understood and agreed that (i) the aggregate commitments of its business requires such qualificationthe lenders under the Existing Credit Facility immediately prior to the Closing Date in an amount equal to $400,000,000 shall constitute “Old Money” for purposes of Paragraph 2 of the Fee Letter and (ii) the increase in the Revolving Credit Commitments in the amount of $100,000,000 on the Closing Date shall constitute “New Money” for purposes of Paragraph 2 of the Fee Letter.
(c) Unless waived by the Administrative Agent, except the Borrower shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs of the Administrative Agent as shall constitute its reasonable estimate of 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 Loan Parties contained in Article V or any other Loan Document, or which are contained in any other document furnished at any time under this Agreement, shall be true and correct in all material respects on and as of the Closing Date.
(e) No Default shall exist and be continuing as of the Closing Date.
(f) There shall not have occurred a material adverse change since December 31, 2006 in the business, assets, operations, condition (financial or otherwise) or prospects of the Borrower and its Consolidated Entities taken as a whole, or in the facts and information regarding such entities as represented to date.
(g) There shall not exist any action, suit, investigation, or proceeding, pending or threatened, in any court or before any arbitrator or 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 do so comply with could not reasonably be expected to have a Material Adverse Effect;.
(i) The Administrative Agent and Lenders shall have completed all due diligence with respect to the Borrower, its Consolidated Entities and its Unconsolidated Entities and the Properties owned thereby.
(j) The Existing Indebtedness has been (or will be, simultaneously with closing hereunder) repaid and satisfied in full and all lending commitments in respect of the Existing Indebtedness have been terminated.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s and Term Loan Agent’s receipt of the following, each of which shall be originals originals, facsimiles 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 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 reasonably satisfactory to the Administrative Agent and each of the LendersTerm Loan Agent:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrower Borrowers in favor of each Lender requesting a Note.;
(iii) such certificates 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 (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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion(s) of Proskauer Rose LLP, counsel to the Loan Parties, addressed to the Agent, the Term Loan Agent, and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(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, (C) to the Solvency of the Loan Parties, on a consolidated basis, as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect;
(1) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agent and Term Agent evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released; and (2) the Agent and Term Loan Agent shall be reasonably satisfied that the Subordinated Notes have been or concurrently with the Closing Date are being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Subordinated Notes, if any, have been or concurrently with the Closing Date are being released (which, for the avoidance of doubt, shall consist of the funds flow and copies of communications sent to each of the holders of the Subordinated Notes delivering repayment in full on the Closing Date);
(ix) the Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) the Term Loan B Intercreditor Agreement, duly executed by all applicable parties;
(xi) the Facility Guaranty, Fee Letter, Perfection Certificate, Grant of Security Interest in Trademarks, Disbursement Letter, Post-Closing Letter, and Borrowing Base Certificate, each duly executed by the applicable Loan Parties;
(xii) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Agent of all Inventory of the Loan Parties, the results of which are satisfactory to the Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Agent;
(xiii) results of searches or other evidence reasonably satisfactory to the Agent and Term Loan Agent (in each case dated as of a date reasonably satisfactory to the Agent and Term Loan Agent) indicating the absence of Liens on the assets of the Loan Parties, 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 Agent and Term Loan 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 Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent or the Term Loan 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 and (B) the DDA Notifications, Credit Card Notifications required pursuant to Section 6.11 hereof; and
(xv) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment (including, without limitation, the Existing Letter of Credit), Availability shall be not less than $20,000,000.
(c) The Agent and Term Loan Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on March 28, 2013, and executed by a Responsible Officer of the Lead Borrower.
(d) The Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since February 27, 2013.
(e) The Agent and Term Loan Agent shall have received and be satisfied with (i) a detailed forecast for the period commencing on the Closing Date and through and including the Maturity Date, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow (on a monthly basis for the 2013 Fiscal Year, and on an annual basis for each Fiscal Year thereafter), each prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices and (ii) such other information (financial or otherwise) reasonably requested by the Agent.
(f) 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.
(g) [Reserved];
(h) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(i) All fees and expenses required to be paid to the Agent, the Term Loan Agent, or the Arranger, as applicable, on or before the Closing Date shall have been paid in full, and all fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Agent and Term Loan Agent to the extent invoiced 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 Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers, and the Agent and Term Loan Agent).
(k) The Agent, Term Loan Agent, and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(l) [Reserved];
(m) The Loan Parties shall have received not less than $80,000,000 in gross proceeds in connection with the Term Loan B Agreement. Without limiting the generality of the provisions of Section 9.04, 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 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 Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 PartyCompany, 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, the Security Agreement, the Collateral Administration Agreement, the Sale Agreement and the GuarantyInvestment Advisory Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a Note.Notes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer 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 the Company is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Company is duly organized or formedorganized, and that each of the Borrower and its Subsidiaries are is validly existing, in good standing and qualified to engage in business in Delaware;
(v) a favorable opinion of counsel to the Company, addressed to the Administrative Agent and each jurisdiction where its ownershipLender, lease as to the matters concerning the Company, the Investment Adviser and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Company 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 operation circumstance since June 4, 2014 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect (other than a Collateral Value Condition);
(vii) a copy of properties the notice delivered pursuant to the JPM Facility Documents designating Company as a “Financing Subsidiary” under and as defined in the JPM Facility Documents; and
(viii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the conduct Required Lenders reasonably may require.
(b) The Administrative Agent shall have confirmed that the Net Asset Value of its business requires Borrower is at least equal to $50,000,000.
(c) Any fees required to be paid on or before the Closing Date that have been invoiced shall have been paid.
(d) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such qualification, except 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 failure such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent); provided, however, that such fees, charges and disbursements shall only be due and payable to do so could not reasonably the extent provided pursuant to Section 10.04. 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 expected 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 Material Adverse Effect;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 Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Restatement Effective Date 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, 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 PartyParty or the Lenders, as applicable, each dated the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerAgreement;
(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 (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 be become a party;
(iv) copies of each Loan Party’s Organization Documents (or a certification that such Organization Documents have not been amended since the date such Organization Documents were previously delivered to the Agents under the Existing Credit Agreement) 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 Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a certificate signed by a Responsible Officer of the Lead Borrower certifying as to the conditions set forth in clauses (d) and (h) of this Section 4.01;
(vi) evidence that the Debt Refinancing shall occur on the Restatement Effective Date (or within 90 days after the Restatement Effective Date pursuant to arrangements reasonably satisfactory to the Administrative Agent) and that all Indebtedness under the Existing Credit Agreement (and all accrued interest and fees thereunder) shall be paid on the Restatement Effective Date;
(vii) a solvency certificate signed by the Chief Financial Officer of the Lead Borrower substantially in the form attached hereto as Exhibit F;
(viii) the Security Agreement and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(ix) all other Loan Documents set forth on Schedule 4.01;
(x) (A) appraisals (based on net liquidation value) by a third party appraiser reasonably acceptable to the Collateral Agent of all Inventory and Scripts of the Borrowers and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, in each case, which may be in abbreviated desktop form; for the avoidance of doubt, the Administrative Agent acknowledges deliverables under this clause (x) have been received prior to the date hereof;
(xi) a Borrowing Base Certificate prepared as of the last day of the most recent Fiscal Month ending at least 20 calendar days prior to the Restatement Effective Date;
(xii) results of searches or other evidence reasonably satisfactory to the Agents (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and releases or subordination agreements reasonably satisfactory to the Agents are being tendered concurrently with the Restatement Effective Date or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(xiii) Uniform Commercial Code financing statements required by Law or reasonably requested by the Agents 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 (or have been authorized by the Loan Parties to be) so filed, registered or recorded to the satisfaction of the Administrative Agent;
(xiv) a Committed Loan Notice; and
(xv) a customary legal opinion (including no conflicts with all indentures and other material debt documents of the Lead Borrower)
(A) from Xxxxxxx Xxxx & Xxxxx LLP, counsel to the Loan Parties (B) from Xxxxxxxxx Traurig LLP, California, Illinois, and Texas counsel to the Loan Parties, and (C) from Xxxxxx PLC, Michigan counsel to the Loan Parties, in each case addressed to the Agents and each Lender.
(b) Prior to or substantially simultaneously with the initial Credit Extension on the Restatement Effective Date, the Lead Borrower shall have received the Equity Contribution.
(c) The Safeway Acquisition shall have been or, substantially concurrently with the initial borrowing under this Agreement, shall be consummated in accordance with the terms of the Safeway Merger Agreement.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Albertsons Companies, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 LendersLenders unless otherwise specified:
(i) executed counterparts of this Agreement and the GuarantyAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerParent;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note.;
(iii) for each Loan Party, (A) its charter (or similar formation document), certified by the appropriate governmental authority, (B) its bylaws (or similar governing document), (C) resolutions duly adopted by its board of directors (or similar governing body) approving such certificates Loan Party’s execution, delivery and performance of resolutions or this Agreement and the other actionLoan Documents to which it is party, and (D) 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 of such Loan Party authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower Loan Party is validly existing and its Subsidiaries are validly existing, in good standing in its jurisdiction of organization;
(v) a favorable opinion of Gxxxxxx Procter LLP, counsel to the Loan Parties, addressed to the Administrative Agent and qualified each Lender, in form and substance satisfactory to engage the Administrative Agent and the Required Lenders;
(vi) a certificate of a Responsible Officer of each Loan Party stating that no consents, licenses or approvals of any Governmental Authority or pursuant to any Material Contract are required in business connection with the execution, delivery and performance by such Loan Party of the Loan Documents to which it is a party;
(vii) a certificate signed by a Responsible Officer of the Borrowers certifying that the conditions specified in each jurisdiction where its ownershipSections 4.01(e) and (f) and Sections 4.02(a) and (b) have been satisfied;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(ix) such other assurances, lease certificates, documents, consents or operation of properties opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the conduct Required Lenders reasonably may require.
(b) Any fees required to be paid pursuant to any Loan Document on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of its business requires counsel to the Administrative Agent (directly to such qualification, except counsel if requested by the Administrative Agent) payable pursuant to the Loan Documents to the extent invoiced prior to or on the Closing Date.
(d) The Closing Date shall have occurred on or before May 15, 2011.
(e) There shall have been no event or circumstance since the date of the Audited Financial Statements that failure has had or could be reasonably expected to do so have, either individually or in the aggregate, a Material Adverse Effect.
(f) There shall be no action, suit, investigation or proceeding pending or, to the knowledge of the Borrowers, threatened in writing in any court or before any arbitrator or Governmental Authority that has had or could not reasonably be expected to have a Material Adverse Effect;. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Unifirst Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 LendersAgent:
(i) executed counterparts of this Agreement and the Guarantyall other Loan Documents, as applicable, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) a Note Notes executed by the Borrower Borrowers in favor of each Lender requesting a Note.Notes;
(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) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower Company and its Subsidiaries are each other Loan 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 Mxxxxx Xxxxx & Bxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H and such other matters concerning the Loan Parties and the Loan Documents as may reasonably be requested;
(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 Company 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;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) receipt by the Administrative Agent of satisfactory results of recent lien and other searches required in each of the jurisdictions where the Borrowers are located (within the meaning of Section 9-307 of the Uniform Commercial Code in effect on the date hereof in the State of Delaware or the Commonwealth of Pennsylvania, or the corresponding code or statute of any other applicable jurisdiction) and such other locations as reasonably required by the Administrative Agent;
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Swing Line Lender reasonably may require; and
(xi) Any fees required to be paid on or before the Closing Date shall have been paid.
(b) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent), 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 Company and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its respective initial Credit Extension 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) or electronic copies (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 and the Subsidiary Guaranty, in each case sufficient in number for distribution to the Administrative Agent, each Lender Lender, Parent, and the Borrower;
(ii) a Note executed by the Borrower Xxxxxxxx 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;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 & Xxxxxxxx LLP, counsel to the Loan Parties, addressed to Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as 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 Parent, for itself and on behalf of Borrower, certifying (A) that the conditions specified in Sections 5.02(a) and (b) have been satisfied; (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) no action, suit, investigation or proceeding is pending or, the knowledge of any Loan Party, threatened in any court or before any arbitrator or governmental authority related to the transactions contemplated by this Agreement or that could reasonably be expected to have a Material Adverse Effect;
(viii) a duly completed Compliance Certificate certifying compliance with all financial covenants set forth in Section 8.15, in each case prepared as of June 30, 2022, on a pro forma basis to reflect the amount of any Borrowings on the Closing Date, and signed by a Responsible Officer of Borrower and Parent;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(x) such other assurances, certificates, documents, consents or opinions as Administrative Agent, L/C Issuer or Required Lenders may reasonably require. including the Borrower’s Instruction Certificate and Borrower Remittance Instructions.
(i) Upon the reasonable request of any Lender made at least seven (7) days prior to the Closing Date, Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least three (3) Business Days prior to the Closing Date and (ii) at least three (3) Business Days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(c) Any fees required to be paid on or before the Closing Date shall have been paid.
(d) Unless waived by Administrative Agent, Xxxxxxxx shall have paid all fees, charges and disbursements of counsel to Administrative Agent (directly to such counsel if requested by 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 5.01, 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 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 Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 PartyCompany, 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, the Security Agreement, the Collateral Administration Agreement, the Sale Agreement and the GuarantyInvestment Management Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a Note.Notes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer 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 the Company is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Company is duly organized or formedorganized, and that each of the Borrower and its Subsidiaries are is validly existing, in good standing and qualified to engage in business in Delaware;
(v) a favorable opinion of Ropes & Gxxx LLP, counsel to the Company, addressed to the Administrative Agent and each jurisdiction where Lender, as to the matters concerning the Company, the Investment Adviser and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Company 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 the Company either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Company and the validity against the Company of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) evidence satisfactory to the Administrative Agent in its ownershipsole discretion that the Net Asset Value of Borrower is at least equal to $25 million; and
(ix) such other assurances, lease certificates, documents, consents or operation of properties opinions as the Administrative Agent or the conduct Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date that have been invoiced shall have been paid.
(c) Unless waived by the Administrative Agent, the 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 business requires reasonable estimate of such qualificationfees, 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 Company 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 (i) the Borrower contained in Article V and (ii) the Borrower and Borrower Parent contained in each 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, or as so qualified, as applicable) on and as of the Closing Date, except to the extent that failure such representations and warranties specifically refer to do an earlier date, in which case they shall be true and correct (in all material respects, or as so could not reasonably qualified, as applicable) as of such earlier date.
(e) No Default shall exist, or would result from such Credit Extension or from the application of the proceeds thereof.
(f) The Administrative Agent and the Lenders shall have a valid and perfected first-priority lien and security interest in the Collateral, all filings (including all UCC financing statements and similar filings contemplated by 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 Collateral shall have been duly made, and all filing and recording fees and taxes shall have been duly paid, including in each case under, and as required by, all applicable laws.
(g) All governmental and third party approvals necessary or, in the reasonable discretion of the Lender, advisable in connection with the Credit Extension shall have been obtained and be expected 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 would restrain, prevent or otherwise impose adverse conditions on the Lender making the Credit Extension.
(h) The initial Lender shall have received and reviewed all financial statements required to be delivered under Section 6.01 and, in each case, such financial statements shall be satisfactory to the initial Lender in its reasonable discretion. 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 Material Adverse Effect;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 (Highland Floating Rate Opportunities Fund)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Co-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, if applicable, each dated the Closing Date such date (or, in the case of certificates of governmental officials, a recent date before the Closing Datesuch date) and each in form and substance satisfactory to the Co-Administrative Agent Agents and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantyAgreement, sufficient in number for distribution to the Administrative each 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 Co-Administrative Agent Agents and the Lenders may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) such documents and certifications as the Co-Administrative Agent Agents and the Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 Jxxxx Day, counsel to the Loan Parties, addressed to the Co-Administrative Agents and each Lender, in form and substance reasonably satisfactory to the Co-Administrative Agents;
(vi) a favorable opinion of Wxxxxxx X. Xxxxxxxx, internal counsel to the Loan Parties in Pennsylvania, addressed to the Co-Administrative Agents and each Lender, in form and substance reasonably satisfactory to the Co-Administrative Agents;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by any 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;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying 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;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate attesting to the Solvency of the Borrower and its Subsidiaries on a consolidated basis, after giving effect to the consummation of the transaction contemplated hereby, from the Borrower’s Chief Financial Officer or Executive Vice President-Finance and Administration; and
(xi) such other assurances, certificates, documents, consents or opinions as the Co-Administrative Agents may reasonably require.
(b) All fees required to be paid by the Borrower on or before the Closing Date shall have been paid in full.
(c) All accrued reasonable expenses of the Co-Administrative Agents and the Lenders, including, without limitation, Attorney Costs for which the Borrower has received a reasonably detailed invoice at least 5 days prior to the Closing Date, shall have been paid in full.
(d) The absence of any action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or Governmental Authority that (i) could reasonably be expected to materially and adversely affect the Borrower and its Subsidiaries, (ii) purports to adversely affect the ability of the Borrower or any other Loan Party to perform their respective obligations under the Loan Documents, or (iii) purports to affect the legality, validity or enforceability of any Loan Document.
(e) There shall not have occurred a material adverse change in the business, assets, liabilities (actual or contingent), operations or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole since December 31, 2004.
Appears in 1 contract
Samples: Credit Agreement (Timken Co)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension Loans hereunder is subject to satisfaction shall not become effective until the date on which each of the following conditions precedentis satisfied:
(a) The Administrative Agent’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 PartyParty or the Lenders, as applicable, each dated the Closing Second Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Closing Second Restatement 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 Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead 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 (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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) favorable opinions of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A., special Florida counsel to the Loan Parties, and Xxxxx Xxxxxxx LLP, special Washington counsel to the Loan Parties, in each case addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.01, 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties, on a Consolidated basis, as of the Second Restatement Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no material governmental consents or approvals, and no third party consents, 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, or (2) that all such consents and approvals have been obtained and are in full force and effect;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect;
(viii) the Security Agreement and certificates evidencing any stock and indebtedness constituting Collateral and required to be delivered to the Agent thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(ix) results of searches or other evidence reasonably satisfactory to the 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, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements reasonably satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(x) to the extent not delivered prior to the date hereof, Uniform Commercial Code financing statements and Intellectual Property Security Agreement, 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; and
(xi) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) On and as of the Second Restatement Date, Excess Availability shall be not less than $35,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Second Restatement Date, relating to the month ended on December 31, 2016, and executed by a Responsible Officer of the Lead Borrower.
(d) The Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since January 30, 2016.
(e) The Agent shall have received and be satisfied with copies of satisfactory interim unaudited financial statements of the Loan Parties for each monthly period since the last financial statements through the most recent month end that is not more than 30 days prior to the Second Restatement Date.
(f) All fees and expenses required to be paid to the Agent or the Arranger on or before the Second Restatement Date shall have been paid in full, and all fees and expenses required to be paid to the Lenders on or before the Second Restatement Date shall have been paid in full.
(g) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Agent to the extent invoiced prior to or on the Second Restatement 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 Second Restatement Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Agent).
(h) The Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations (including without limitation, the Patriot Act and money service business and high risk country requirements), in each case, the results of which are reasonably satisfactory to the Agent. Without limiting the generality of the provisions of Section 9.04, 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 Agent shall have received notice from such Lender prior to the proposed Second Restatement Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, 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 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 Lenders:
Agent: (i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead 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 (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 be become a party;
; (iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;; (v) a favorable opinion of DLA Piper LLP (US), counsel to the Loan Parties, addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request; (vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect; (vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect; (viii) a payoff letter from Siena Lending Group LLC satisfactory in form and substance to the Agent evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing
(A) all documents and instruments, including Uniform Commercial Code 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, and (B) the Credit Card Notifications and Control Agreements required pursuant to Section 6.13 hereof, and (C) Collateral Access Agreements as required by the Agent (and including a Collateral Access Agreement with Amalgamate Processing, Inc, that also includes its agreement to provide certain services to Agent subject to certain conditions); (xiii) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
Appears in 1 contract
Samples: Credit Agreement (Lovesac Co)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, 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 LendersAgent:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead 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 (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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxxxxx & Xxxxxx PLLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since January 31, 2010 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agents required under the Loan Documents have been obtained and are in effect;
(viii) a payoff letter from the agent for the lenders under the Existing Credit Agreement satisfactory in form and substance to the Administrative Agent evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security Documents (including, without limitation, the Mortgages, to the extent that Eligible Real Estate is included in the Borrowing Base as of the Closing Date) and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties, subject to acceptable temporary escrow of certificates pending payment in full of obligations under the Existing Credit Agreement;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xi) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Collateral Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Collateral Agent;
(xii) 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 Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any Mortgages, and releases or subordination agreements satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral 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 Collateral Agent, (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements as required by the Collateral Agent;
(xiv) complete and correct copies of the Sponsor Note and the Trade Credit Documents, including Confirmation of Subordination Agreement (including all schedules, exhibits, amendments, supplements, modifications, assignments and all other documents delivered pursuant thereto or in connection therewith);
(xv) to the extent that Eligible Real Estate is included in the Borrowing Base as of the Closing Date:
(A) evidence that all other actions that the Collateral Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(B) an appraisal of each of the properties described in the Mortgages complying with the requirements of FIRREA by a third party appraiser acceptable to the Collateral Agent and otherwise in form and substance satisfactory to the Collateral Agent;
(C) flood certificates with respect to each of the properties described in the Mortgages certifying that such properties are not in a flood zone otherwise the Administrative Agent shall be named as loss payee and additional insured on flood insurance reasonably acceptable to the Administrative Agent with respect to such properties; and
(xvi) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $11,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the period ended as of May 22, 2010, and executed by a Responsible Officer of the Lead Borrower.
Appears in 1 contract
Samples: Credit Agreement (Sportsman's Warehouse Holdings, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 and each of the LendersAgent:
(i) executed counterparts of this Agreement and the GuarantyGuaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrowers;
(ii) a Note Notes executed by the Borrower Borrowers in favor of each Lender requesting a Note.Notes;
(iii) such certificates of resolutions or other action, equivalent action and incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require reasonably request evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require request to evidence that each Loan Party is duly organized or formed, validly existing and that each of the Borrower and its Subsidiaries are validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownershipof organization;
(v) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, lease (B) that there has been no event or operation circumstance since the date of properties the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the conduct of its business requires such qualificationaggregate, a Material Adverse Effect; (C) the current Debt Ratings and (D) that, except as set forth on Schedule 5.06(b), there are no actions, suits, investigations or proceedings pending or, to the extent knowledge of the Company, threatened in any court or before any arbitrator or governmental authority that failure to do so could not would reasonably be expected to have a Material Adverse Effect;; and
(vi) opinions of (i) Tarrant Sibley, Esq., Senior Vice President and Deputy General Counsel of the Company, substantially in the form of Exhibit I-1 hereto, (ii) Xxxxxxxxx Xxxxxx, Legal Director of Hasbro SA, substantially in the form of Exhibit I-2 hereto and (iii) Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, special New York counsel to the Loan Parties, substantially in the form of Exhibit I-3 hereto.
(b) All accrued and invoiced fees and expenses of the Lead Arrangers, the Administrative Agent and the Lenders (including the fees and expenses of counsel for the Administrative Agent) required to be paid on or before the Closing Date shall have been paid.
(c) All obligations under the Existing Credit Agreement shall have been paid in full and the Existing Credit Agreement, including all commitments thereunder, shall have been terminated. Without limiting the generality of the provisions of Section 9.04, 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 Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 and each of the LendersAgent:
(i) executed counterparts of this Agreement and Agreement, the Guaranty, and each Collateral Document, 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 or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedformed and in good standing in its jurisdiction of organization and, with respect to the Borrower, in the State of New York;
(v) a favorable opinion of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and that each Lender, in form and substance reasonably acceptable to the Administrative Agent;
(vi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and its Subsidiaries approvals required in connection with the execution, delivery and performance by the Loan Parties and the validity against each 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 validly existing, so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in good standing Sections 4.02(a) and qualified to engage in business in each jurisdiction where its ownership, lease (b) have been satisfied and (B) that there has been no event or operation circumstance since the date of properties the Audited Financial Statements that has had or the conduct of its business requires such qualification, except to the extent that failure to do so could not be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect.
(viii) a duly executed deposit account control agreement by and among the Borrower, the Administrative Agent, and Bank of America, as the depositary institution;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) evidence that all outstanding Liens other than Permitted Liens have been or concurrently with the Closing Date are being terminated; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer or the Required Lenders reasonably may require.
(b) Any fees required to be paid 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 Closing Date shall have occurred on or before July 15, 2009. 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 Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, 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 Third Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Closing Third Restatement Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement each properly executed by a Responsible Officer of the signing Loan Party and the Guaranty, Lenders sufficient in number for distribution to the Administrative Agent, each Lender and the Lead 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 reasonably 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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan Party is validly existing, in good standing 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of McGuireWoods LLP, counsel to the Loan Parties, addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.01 and 4.02 have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect (it being understood that all litigation filed against the Loan Parties or their Affiliates with respect to the subject of the March 1, 2015 60 Minutes report on the Lead Borrower and its business (and any subsequent media reports with respect to the subject of such 60 Minutes report) shall not, to the extent disclosed to the Agent in writing on or before July 28, 2016, be deemed violative of this condition precedent), (C) to the Solvency of the Loan Parties as of the Third Restatement Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect;
(viii) the Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(ix) all other Loan Documents set forth on Schedule 4.01(a)(ix) hereto, each duly executed by the applicable Loan Parties;
(x) results of searches or other evidence reasonably satisfactory to the 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, except for Permitted Encumbrances and Liens for which termination statements satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent for the delivery of such termination statements have been made;
(xi) all documents and instruments, including Uniform Commercial Code 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;
(xii) the items set forth in clauses (d) through (k) of the definition of Eligible Real Estate; and
(xiii) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account on the Third Restatement Date as required by the Loan Documents and (iii) all Letters of Credit to be issued at, or immediately subsequent to, the Third Restatement Date, Availability shall be not less than $75,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Third Restatement Date, relating to the month ended on May 31, 2016, and executed by a Responsible Officer of the Lead Borrower.
(d) The Agent shall be reasonably satisfied that any financial statements of the Loan Parties delivered to it and the Lenders fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the Audited Financial Statements, it being understood that all litigation filed against the Loan Parties or their Affiliates with respect to the subject of the March 1, 2015 60 Minutes report on the Lead Borrower and its business (and any subsequent media reports with respect to the subject of such 60 Minutes report) shall not, to the extent disclosed to the Agent in writing on or before July 28, 2016, be deemed violative of this condition precedent.
(e) There shall not be any action, suit, investigation or proceeding pending or, to the knowledge of executive officers of the Borrowers, threatened in any court or before any arbitrator or Governmental Authority, and in each case not previously disclosed to the Agent, that could reasonably be expected to have a Material Adverse Effect.
(f) The Agent shall have received evidence reasonably satisfactory to it that no Loan Party or any Subsidiary is in default in any material respect under any Material Contract.
(g) The consummation of the transactions contemplated hereby shall not violate any Law or any Organization Document.
(h) All fees required to be paid to the Agent or the Arrangers on or before the Third Restatement Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Third Restatement Date shall have been paid in full.
(i) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Agent to the extent invoiced prior to or on the Third Restatement Date.
(j) The Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(k) The Agent shall have received and be satisfied with detailed financial projections and business assumptions for the Borrower and each of the Guarantors on a monthly basis for the period through the Borrower’s Fiscal Year ending December 31, 2018, including a consolidated income statement, balance sheet, statement of cash flow and borrowing base availability analysis.
Appears in 1 contract
Samples: Credit Agreement (Lumber Liquidators Holdings, Inc.)
Conditions of Initial Credit Extension. The This Agreement shall become effective upon, and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to 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 (iii) or (iv) below with respect to which the Company has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies electronic copies (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 and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note Notes executed by the Borrower Company in favor of each Lender requesting a Note.Notes;
(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, identity 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 or is to be a party;
(iv) such documents and certifications evidence as the Administrative Agent may reasonably require to evidence verify that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are 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, except to together with certified copies of each Loan Party’s Organization Documents;
(v) a certificate signed by a Responsible Officer of the extent Company certifying (A) that failure to do so could not 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 which has or would be reasonably be expected to have a Material Adverse Effect;; and
(vi) an opinion of counsel to each Loan Party substantially in the form of Exhibit G.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all Attorney Costs of 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 Attorney Costs as shall constitute its reasonable estimate of 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 Company and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, 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 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 and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead 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 (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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Morgan, Lewis, Bockius LLP, counsel to the Loan Parties, addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and 4.02(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, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) a duly completed Compliance Certificate as of the last day of the Fiscal Month of the Lead Borrower and its Subsidiaries most recently ended prior to the Closing Date, signed by a Responsible Officer of the Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect;
(ix) the Security Documents (including, without limitation, the certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank), each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xi) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Agent;
(xii) results of searches or other evidence reasonably satisfactory to the 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, 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 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 Uniform Commercial Code 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) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements as required by the Agent; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $15,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on May, 2013, and executed by a Responsible Officer of the Lead Borrower.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 PartyCompany, 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 Agreement, the Security Agreement, the Collateral Administration Agreement, and the GuarantyInvestment Management Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a Note.Notes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer of each Loan Party the Company 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 Company is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Company is duly organized or formedorganized, and that each of the Borrower and its Subsidiaries are is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownershipDelaware;
(v) a favorable opinion of Dechert LLP, lease or operation of properties or the conduct of its business requires such qualification, except counsel to the extent Company, addressed to the Administrative Agent and each Lender, as to the matters concerning the Company, the Investment Adviser and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Company certifying (A) that failure to do so 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 not be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect;
(vii) a certificate of a Responsible Officer of the Company either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Company and the validity against the Company of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) 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) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require;
(x) a favorable opinion of Dechert LLP, counsel to the Investment Adviser, addressed to the Administrative Agent and each Lender, as to such matters concerning the Investment Adviser and the Loan Documents as the Required Lenders may reasonable request;
(xi) a favorable opinion of Dechert LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, to the effect that the Borrower would not be consolidated with the BDC Parent in the event of a proceeding under the Bankruptcy Code;
(xii) an opinion of Dechert LLP, counsel to the Borrower, addressed to the Administrative Agent, each Lender and the Collateral Administrator, in form and substance reasonably satisfactory to the Administrative Agent, to the effect that the security interest hereunder is an enforceable and perfected security interest, subject to no other Liens of record except as provided herein or otherwise permitted hereunder;
(xiii) the Company shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act; and
(xiv) the Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have provided, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower.
(b) Any fees required to be paid on or before the Closing Date that have been invoiced shall have been paid. 44
Appears in 1 contract
Samples: Credit Agreement (Barings BDC, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 copies (followed promptly by originalsoriginals where requested by the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantyAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrower (unless otherwise approved by Administrative Agent);
(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;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownershipof organization or formation;
(v) a favorable opinion of Xxxxx Lovells US LLP, lease or operation of properties or the conduct of its business requires such qualification, except counsel to the extent Loan Parties, addressed to Administrative Agent and each Lender, in form and substance reasonably satisfactory to Administrative Agent;
(vi) a certificate signed by a Responsible Officer of Borrower certifying (A) that failure the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to do so have, either individually or in the aggregate, a Material Adverse Effect and (C) no consents, licenses or approvals are required in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party; 60
(vii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of Borrower ended on September 30, 2020, signed by a Responsible Officer of Borrower; and
(viii) such other customary documents, instruments, agreements, or information, as Administrative Agent reasonably may require.
(b) There shall not exist any action, suit, investigation, or proceeding, pending or, to the knowledge of a Responsible Officer of Borrower, threatened in any court or before any arbitrator or Governmental Authority related in any way to the Obligations or that could not reasonably be expected to have a Material Adverse Effect;.
(c) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(d) Any fees required to be paid on or before the Closing Date shall have been paid.
(e) Unless waived by Administrative Agent, Borrower shall have paid, subject to any limitations described in the Mandate Letter, all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to Administrative Agent (directly to such counsel if requested by Administrative Agent) to the extent invoiced not less than one (1) Business Day 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 Borrower and Administrative Agent).
(i) Upon the reasonable request of any Lender made at least ten (10) days prior to the Closing Date, Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least five (5) days prior to the Closing Date; and (ii) at least five (5) days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless 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 (NVR Inc)
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder enter into this Agreement is subject to satisfaction of the following conditions precedent:
(a) The Receipt by the Administrative Agent’s receipt Agent of the following, each :
(i) executed counterparts of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifiedthis Agreement and the other Loan Documents, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orParty and, in the case of certificates of governmental officialsthis Agreement, a recent date before the Closing Date) and by each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerLender;
(ii) copies of the Organization Documents of each Loan Party certified to be true and complete as of a Note executed recent date by the Borrower in favor appropriate Governmental Authority of each Lender requesting the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a Note.secretary or assistant secretary of such Loan Party to be true and correct as of 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) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are is validly existing, in good standing and qualified to engage in business in its jurisdiction of formation;
(v) a favorable opinion of in-house counsel to the Loan Parties, addressed to the Administrative Agent and each jurisdiction where its ownership, lease or operation Lender;
(vi) a certificate signed by a Responsible Officer of properties or the conduct of its business requires such qualificationCompany certifying (A) that, except to as described in any subsequent Form 10-Q or Form 8-K filing, there has been no event or circumstance since the extent date of the Audited Financial Statements that failure to do so has had or could not be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect;; and (B) the current Debt Ratings; and
(vii) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to 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 Company and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.04, for purposes of determining compliance with the conditions specified in this Section 5.01, 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 (Cabot Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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) or electronic copies (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 Subsidiary Guaranty, in each case sufficient in number for distribution to the Administrative Agent, each Lender Lender, Parent, 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 or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as 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 of any Governmental Authority 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 Parent, for itself and on behalf of Borrower, certifying (A) that the conditions specified in Sections 6.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since December 31, 2012 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) a proforma calculation of the Leverage Ratio as of the Closing Date;
(viii) a duly completed Borrowing Base Report and Compliance Certificate certifying compliance with the financial covenants set forth in Section 9.15 (other than Sections 9.15(e) and 9.15(f)), in each case prepared as of the Closing Date on a proforma basis and signed by a Responsible Officer of Parent, for itself and on behalf of Borrower;
(ix) the Property Information with respect to each of the Initial Borrowing Base Properties;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(xi) such other certificates, documents, instruments or information as Administrative Agent, L/C Issuer, Swing Line Lender or Required Lenders may reasonably require.
(b) Any fees required to be paid pursuant to the Loan Documents on or before the Closing Date shall have been paid.
(c) Unless waived by Administrative Agent, Borrower shall have paid all fees, charges and disbursements of counsel to Administrative Agent (directly to such counsel if requested by Administrative Agent) required to be paid pursuant to the Loan Documents 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 Borrower and Administrative Agent).
(d) Administrative Agent and Lenders shall have received and be reasonably satisfied with the Historical Financial Statements and the Pro Forma Financial Statements.
(e) The IPO shall have occurred. Without limiting the generality of the provisions of the last paragraph of Section 11.03, for purposes of determining compliance with the conditions specified in this Section 6.01, 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 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 Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantyAgreement, 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.Note (to the extent requested at least three (3) 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 require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized validly existing and in good standing in its jurisdiction of incorporation or formedformation, as applicable;
(v) a favorable opinion of Xxxxxxx Xxxx & Xxxxxxxxx, LLP, special New York counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in customary form;
(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 each 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 4.02(a) and its Subsidiaries are validly existing(b) have been satisfied, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease (B) that there has been no event or operation circumstance since the date of properties the Audited Financial Statements that has had or the conduct of its business requires such qualification, except to the extent that failure to do so could not would be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Net Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on September 30, 2021;
(viii) the Audited Financial Statements and the unaudited financial statements of the Borrower referred to in Section 5.05(a) and (b); and
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(i) 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, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) days prior to the Closing Date and (ii) at least three (3) days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(c) Any fees required to be paid on or before the Closing Date shall have been paid on or substantially concurrently with the Closing Date provided that the payment of fees and expenses of counsel shall be subject to the receipt of an invoice with respect thereto at least two (2) Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid, on or substantially concurrently with the Closing Date, all fees, charges and disbursements of one counsel to the Administrative Agent and the Lenders collectively (directly to such counsel if requested by the Administrative Agent) to the extent invoiced in reasonable detail at least two (2) Business Days prior to or 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 1 contract
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension 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, 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 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 reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement 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 reasonably 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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (a) Xxxxxxxx PC, counsel to certain of the Loan Parties, addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request, (b) Xxxx Xxxxx LLP, Pennsylvania counsel to TBAC Trust, addressed to the Agent and each Lender, as to such matters concerning TBAC Trust and the Loan Documents as the Agent may reasonably request, and (c) Xxxx & Berlis LLP, Canadian counsel to XX Xxxxxxx, addressed to the Agent and each Lender, as to such matters concerning XX Xxxxxxx and the Loan Documents as the Agent 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 4.02(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 (except as disclosed in the Borrower’s reports filed with the SEC prior to the Closing Date), (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect except those which, if not obtained, would not cause a Default hereunder, and could not reasonably be expected to have a Material Adverse Effect or do not have an adverse effect on the enforceability of the Loan Documents;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required under the Loan Documents have been obtained and are in effect;
(viii) a payoff letter from the lender under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agent evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security Documents (including, without limitation, the Mortgages and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xi) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Agent of all Inventory of the Borrower, the results of which are satisfactory to the Agent (it being agreed that the appraisal of Xxxxxx Xxxxxxxx delivered to Agent prior to the Closing Date shall be deemed satisfactory) and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Agent;
(xii) results of searches or other evidence reasonably satisfactory to the 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, 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 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 UCC and PPSA 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) the DDA Notifications and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts (if any), and (D) Collateral Access Agreements as required by the Agent;
(xiv) evidence that all other actions that the Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(xv) an appraisal of each of the properties described in the Mortgages by a third party appraiser acceptable to the Agent and otherwise in form and substance satisfactory to the Agent (it being agreed that the appraisal of CBIZ Valuation Group, LLC delivered to Agent prior to the Closing Date shall be deemed satisfactory);
(xvi) flood certificates with respect to each of the properties described in the Mortgages certifying that such properties are not in a flood zone otherwise the Agent shall be named as loss payee and additional insured on flood insurance reasonably acceptable to the Agent with respect to such properties; and
(xvii) such other assurances, certificates, documents, consents or opinions as the Agent or its counsel reasonably may require.
(b) After giving effect to (i) the Loans made, and the Letters of Credit issued, on the Closing Date and (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby, Availability shall be not less than $2,500,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the week ended on July 20, 2013, with a roll-forward with respect to Inventory and Accounts through July 22, 2013, and executed by a Responsible Officer of the Borrower.
(d) The Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the Audited Financial Statements (except as disclosed in the Borrower’s reports filed with the SEC prior to the Closing Date).
(e) The Agent shall have received executed copies of the Licensor/Vendor Subordinated Notes.
(f) The Agent shall have received licensor consent agreements with respect to each of the license agreements set forth on Schedule 4.01 hereto, which consents shall provide that the applicable licensor under each such license agreement shall provide the Agent notice of any default under, or termination of, such license agreement contemporaneously with any delivery of such notice to the applicable Loan Party thereof.
(g) The Agent shall be reasonably satisfied that the Real Estate Eligibility Conditions have been satisfied.
(h) The Agent shall have received and be satisfied with the Borrower’s Business Plan and such other information (financial or otherwise) reasonably requested by the Agent. The Agent shall have received and reviewed the Approved Budget, which shall be in form and substance reasonably satisfactory to the Agent.
(i) There shall not be pending any litigation or other proceeding (except as disclosed on Schedule 5.06), the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(j) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(k) All fees and expenses required to be paid to the Agent on or before the Closing Date shall have been paid in full, and all fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(l) The Borrower shall have paid all fees, charges and disbursements of counsel to the 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 Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Agent).
(m) The Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada).
(n) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date. (o) There shall not have occurred any disruption or material adverse change in the United States financial or capital markets in general that has had, in the reasonable opinion of the Agent, a material adverse effect on the market for loan syndications or adversely affecting the syndication of the Loans.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, 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 reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement each properly executed by a Responsible Officer of the signing Loan Party and the Guaranty, Lenders sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrower Borrowers in favor of each Lender requesting a Note.Note (to the extent any such Note or Notes were requested on or before 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 (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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan Party is validly existing, in good standing 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 qualificationformation, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Loan Parties, addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request (which shall include, among other things, authority, legality, validity, binding effect and enforceability of the Loan Documents, non-contravention and creation and perfection of the Liens on the Collateral in favor of the Agent);
(vi) a certificate of a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.01 and 4.02 have been satisfied, (B) that since February 1, 2014, there has not occurred a Material Adverse Effect, and (C) as to the Solvency of the Loan Parties;
(vii) a letter from the agent and the lenders under the Hot Topic, Inc. loan arrangements reasonably satisfactory in form and substance to the Agent evidencing that the Loan Parties have been or concurrently with the Closing Date will be released from all obligations under such loan arrangements, all Liens securing obligations thereunder have been or concurrently with the Closing Date are being released, and consenting to the transfer of all of the issued and outstanding Equity Interests of the Lead Borrower to Holdings;
(viii) (A) the Security Documents, each duly executed by the applicable Loan Parties, and (B) evidence that certificates evidencing any stock or instruments being pledged under the Security Documents, together with undated stock powers or other documents of transfer executed in blank, have been delivered to the Agent;
(ix) a disbursement letter, in form and substance reasonably satisfactory to the Agent and the Lenders;
(x) at least ten (10) Business Days prior to the Closing Date, (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Agent of all Inventory of the Borrowers to be included in the Borrowing Base, which appraisals are in form and substance reasonably satisfactory to the Agent, and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be in form and substance reasonably satisfactory to the Agent;
(xi) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xii) results of searches or other evidence reasonably satisfactory to the 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, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any Mortgages, and releases or subordination agreements reasonably satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Agent for the delivery of such termination statements, releases, satisfactions and discharges have been made; and
(xiii) all Uniform Commercial Code financing statements and short-form grants of security interest in Intellectual Property, required by Law or reasonably requested by the Agent to be filed, registered or recorded to create or perfect the Liens intended to be created under the Loan Documents having the priority intended thereby and all such documents and instruments shall have been so filed, registered or recorded (or arrangements for the same made) to the reasonable satisfaction of the Agent.
(b) After giving effect to any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby, Availability shall be not less than seventy-five percent (75%) of the Borrowing Base.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on April 4, 2015, and executed by a Responsible Officer of the Lead Borrower.
Appears in 1 contract
Samples: Credit Agreement (Torrid Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 electronically transmitted copies (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 and the GuarantyAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrower Agent;
(ii) a Note executed by the Borrower Borrowers in favor of each Lender requesting a Note.;
(iii) executed counterparts of each other Loan Document;
(iv) 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;
(ivv) such documents and certifications as of a recent date as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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;
(vi) a favorable opinion of Xxxxx Xxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in form and substance reasonably 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;
(viii) a certificate signed by a Responsible Officer of the Borrower Agent 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;
(ix) a certificate attesting to the Solvency of the Loan Parties, taken as a whole, before and after giving effect to the extension of Loans hereunder, from the chief financial officer of the Borrower Agent;
(A) all revolving commitments and loans under the Prior Credit Agreement of each Lender that is a party to this Agreement shall be evidenced only by this Agreement, and (B) all revolving commitments and loans under the Prior Credit Agreement of each Existing Lender that is not a party to this Agreement shall have been assigned to each of the applicable Lenders hereunder; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(i) All fees required to be paid to the Administrative Agent, Xxxxx Fargo Bank, National Association and/or the Co-Lead Arrangers on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
Appears in 1 contract
Samples: Credit Agreement (Tidewater Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 PartyParty unless otherwise specified, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent Agent, the Arrangers and each of the Lenderstheir legal counsel:
(i) executed counterparts of this Agreement and the GuarantyAgreement, sufficient in number for distribution to the Arrangers, the Administrative Agent, Agent each Lender and the Borrower;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a Note.Note 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 or the Arrangers may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Transaction, this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent or the Arrangers may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are 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) the favorable opinions of (A) Dxxxx Xxxx, senior attorney of the Loan Parties and (B) King & Spalding, special counsel to the Loan Parties, addressed to the Arrangers, the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning the Loan Parties, the Loan Documents and the Transaction as the Arrangers or the 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 certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) a calculation of the Consolidated Total Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date both on an actual basis as of the date of determination and on a pro forma basis (as it pertains to Indebtedness incurred on the Closing Date), showing a Consolidated Total Leverage Ratio of not more than 3.30 to 1.00;
(viii) a security agreement in substantially the form of Exhibit H (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, supplemented or otherwise modified from time to time, the “Security Agreement”), duly executed by each Loan Party, together with:
(A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt referred to therein indorsed in blank,
(B) proper financing statements, duly filed or authorized on or before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Arrangers may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents, covering the Collateral described in the Collateral Documents,
(C) satisfactory completed requests for information, dated on or near the Closing Date, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party or predecessor as debtor, together with copies of such financing statements, together with due intellectual property, judgment and tax searches,
(D) evidence of the completion or authorization of all other recordings and filings of or with respect to the Collateral Documents (including as to intellectual property) that the Arrangers may deem necessary or desirable in order to perfect and protect the Liens created thereby,
(E) evidence of the insurance required by the terms of the Security Agreement accompanied by a broker’s or similar letter as to adequacy and compliance of insurance in form satisfactory to the Administrative Agent,
(F) copies of the Assigned Agreements referred to in the Security Agreement,
(G) the Pledged Account Letters referred to in and to the extent required by the Security Agreement, duly executed by each Pledged Account Bank referred to in the Security Agreement, and
(H) reasonably satisfactory evidence that all other action that the Arrangers or the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents has been taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and, if reasonably requested by the Arrangers, landlords’ and bailees’ waiver and consent agreements).
(ix) a guaranty in substantially the form of Exhibit F (together with each other guaranty and guaranty supplement delivered pursuant to Section 6.12, in each case as amended, supplemented or otherwise modified from time to time, the “Guaranty”), duly executed by each Guarantor;
(x) a copy of a certificate of the Secretary of State of the jurisdiction of organization or formation of each Loan Party, dated reasonably near the Closing Date, certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly organized or formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization or formation;
(xi) a certificate of each Loan Party, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in clause (x) above, (B) a true and correct copy of the other Organization Documents of such Loan Party as in effect on the date on which the resolutions referred to in clause (iii) above were adopted and on the Closing Date, (C) the due organization or formation and good standing or valid existence of such Loan Party as a corporation, limited liability company or partnership, as the case may be, organized under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the Closing Date and (E) the absence of any event occurring and continuing, or resulting from the initial Credit Extension, that constitutes a Default;
(xii) certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Arrangers and the Administrative Agent, accompanied by due certifications that none of such documents, have been amended or waived as of the Closing Date (unless consented to in writing by the Arrangers and the Administrative Agent), together with all agreements, instruments and other documents delivered in connection therewith as the Arrangers and the Administrative Agent shall request;
(xiii) certificates, in form and substance satisfactory to the Arrangers, attesting to the Solvency of the Loan Parties before and after giving effect to the Transaction, from its Chief Financial Officer;
(xiv) evidence of insurance naming the Administrative Agent as additional insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is reasonably satisfactory to the Arrangers and the Administrative Agent; and
(xv) a Committed Loan Notice relating to the initial Credit Extension.
(b) Any fees required to be paid on or before the Closing Date pursuant to the Fee Letters or any other fee letter executed by the Borrower in connection with the Transaction shall have been paid in full and all reasonable out-of-pocket fees and expenses of the Arrangers incurred in connection with the Loan Documents not covered by clause (c) below shall have been paid in full to the extent invoiced prior to or on the Closing Date.
(c) Unless deferred by the Arrangers, the Borrower shall have paid in full all reasonable Attorney Costs of the Arrangers to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of 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 Arrangers).
(d) The Arrangers and the Administrative Agent shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which are being pledged pursuant to the Loan Documents, including the terms and conditions of the Organization Documents and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization.
(e) The Arrangers and the Administrative Agent shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished.
(f) Both before and after giving effect to the Transaction, there shall have occurred no Material Adverse Effect since May 31, 2002.
(g) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any Governmental Authority or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the Transaction.
(h) All material governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Required Lenders) and shall remain in effect.
(i) The Arrangers shall be reasonably satisfied that (i) the Loan Parties will be able to meet their obligations under all employee and retiree welfare plans, (ii) the Loan Parties’ and ERISA Affiliates’ Plans shall be funded in accordance with the minimum statutory requirements, (iii) no “Reportable Event” shall have occurred and be continuing as to any such Plan, and (iv) no termination of, or withdrawal from, any such Plan shall have occurred and be continuing or be contemplated that could reasonably be expected to result in a material liability.
(j) Simultaneously with the making of the initial Credit Extension, the Borrower shall have received at least $150,000,000 in gross cash proceeds from the Senior Subordinated Note Financing pursuant to the Senior Subordinated Note Documents, without any amendment or waiver thereof unless consented to in writing by the Arrangers and the Administrative Agent.
(k) Simultaneously with the making of the initial Credit Extension, (i) the Existing Credit Facility shall have been prepaid in full in cash and the commitments of the lenders thereunder shall have been terminated, (ii) any liens and security interests in respect thereof shall have been released and (iii) the Arrangers shall have received a pay-off letter reasonably satisfactory to the Arrangers and the Administrative Agent with respect to the Existing Credit Facility.
(l) Simultaneously with the making of the initial Credit Extension, the Borrower shall have placed Escrowed Funds into the Escrow Account in an amount sufficient to redeem the 5% Debentures and to pay all related stated call premiums and interest and other related amounts on terms satisfactory to the Administrative Agent and the Arrangers.
(m) The Credit Facilities shall have received a long-term senior secured debt rating of no less than BB- from S&P and Ba3 from Mxxxx’x and each such rating shall remain in effect on the Closing Date.
(n) After giving effect to the Transaction, the Borrower and its Subsidiaries shall have outstanding no Surviving Debt other than as set forth on Schedule 5.22 hereto and the Loans hereunder.
(o) The Arrangers and the Administrative Agent shall be satisfied that the amount of committed financing available to the Borrower shall be sufficient to finance the Transaction and to meet its ongoing financial needs after giving effect to the Transaction.
(p) There shall be no less than $99,720,000 of availability under the Revolving Credit Facility (after giving effect to the issuance of a Letter of Credit hereunder in connection with the Borrower’s wxxxxxx’x compensation obligations in an amount not to exceed $280,000) as of the Closing Date, after giving effect to the Transaction.
(q) The Borrower shall have a Consolidated Total Leverage Ratio of not more than 3.30:1.00 on the Closing Date after giving effect to the Transaction (with funds escrowed for application to the Senior Subordinated Notes being deemed applied thereto for purposes of such application), as certified by the Borrower pursuant to Section 4.01(a)(vii) above.
Appears in 1 contract
Samples: Credit Agreement (Ndchealth Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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) or electronic copies (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 Subsidiary Guaranty, in each case sufficient in number for distribution to the Administrative Agent, each Lender Lender, Parent, 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 or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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) favorable opinions of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, and Xxxxxxx LLP, counsel to Borrower and Parent, each addressed to Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as 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 of any Governmental Authority 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 Parent, for itself and on behalf of Borrower, certifying (A) that the conditions specified in Sections 6.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since December 31, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a duly completed Unencumbered Property Report and Compliance Certificate certifying compliance with the financial covenants set forth in Section 9.13, in each case prepared as of September 30, 2016, on a pro forma basis, and signed by a Responsible Officer of Parent, for itself and on behalf of Borrower;
(ix) such other certificates, documents, instruments or information as Administrative Agent, L/C Issuer, Swing Line Lender or Required Lenders may reasonably require.
(b) Any fees required to be paid pursuant to the Loan Documents on or before the Closing Date shall have been paid.
(c) Unless waived by Administrative Agent, Borrower shall have paid all fees, charges and disbursements of counsel to Administrative Agent (directly to such counsel if requested by Administrative Agent) required to be paid pursuant to the Loan Documents 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.03, for purposes of determining compliance with the conditions specified in this Section 6.01, 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 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 Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 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 or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan Parties is validly existing, in good standing and qualified to engage in business in its state of incorporation (or formation) and in each jurisdiction where its ownershipother state requested by the Administrative Agent;
(i) a favorable opinion of Dxxxxxxxx & Pxxxxxxx LLP, lease or operation of properties or the conduct of its business requires such qualification, except counsel to the extent Loan Parties, and (ii) a favorable opinion of Jxxxxxx Xxxxxxxx, Vice President, General Counsel, Chief Administrative Officer, and Secretary of the Borrower, in each case, addressed to the Administrative Agent and each Lender;
(vi) [reserved];
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that failure to do so the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could not be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect, (C) the representations and warranties set forth in Section 5 hereof are true and correct on and as of the Closing Date, and (D) no Default or Event of Default has occurred and is continuing;
(viii) [reserved];
(ix) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated;
(x) at least five Business Days prior to the Closing Date, all documentation and other information concerning the Borrower as shall be reasonably required by any Lender to satisfy its bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested at least ten Business Days prior to the date hereof; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid by the Borrower on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three (3) Business Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Aar Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 and the GuarantyAgreement, 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 or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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) an opinion or opinions (including, if requested by the Administrative Agent, local counsel opinions) of counsel for the Loan Parties, dated the Closing Date and addressed to the Administrative Agent and the Lenders, in form and substance reasonably acceptable to the Administrative 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 4.02(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;
(viii) a Solvency Certificate signed by a Responsible Officer of each Loan Party and their Subsidiaries to the financial condition, solvency and related matters of each Loan Party and their Subsidiaries, after giving effect to the initial Borrowings under the Loan Documents and the other transactions contemplated hereby;
(ix) the following financial statements:
(A) the Audited Financial Statements referred to in Section 5.05(a),
(B) the unaudited financial statements of the Borrower referred to in Section 5.05(b), and
(C) forecasts prepared by management of the Borrower, in form satisfactory to the Administrative Agent and the Required Lenders, of consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for the fiscal years 2024 through 2030;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that the Existing Senior Notes have been or concurrently with the Closing Date are satisfied and discharged, and all Liens securing obligations under the Existing Senior Notes have been or concurrently with the Closing Date are being released; and
(A) searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Liens permitted under Section 7.01 and (B) tax lien, judgment and bankruptcy searches;
(xiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the each Borrower;
(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 as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence demonstrate that each Loan Party is duly organized or formed, and that each of the Borrower Company and its Subsidiaries Xxxxxxxxx Capital are validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(v) a favorable opinion of Xxxxxx & Whitney, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each jurisdiction where its ownershipLender, lease in form and substance satisfactory to the Administrative Agent;
(vi) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Section 4.01(c) and Sections 4.02(a) and have been satisfied, (B) that there has been no event or operation circumstance since the date of properties 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 Leverage Ratio as of the last day of the fiscal quarter of the Company most recently ended prior to the Effective Date; and
(vii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer or the conduct Required Lenders reasonably may require.
(b) All accrued and unpaid fees under Sections 2.05(i) and (j) and Sections 2.10(a) and (b) of its business requires such qualificationthe Existing Credit Agreement and any other fees required to be paid on or before the Effective Date shall have been paid and all Loans and other amounts outstanding under the Existing Credit Agreement, except together with interest thereon and, if applicable, amounts due under Section 3.04 shall have been (or shall substantially contemporaneously be) repaid (and the commitments thereunder shall have been terminated) pursuant to a payoff letter reasonably satisfactory to the Administrative Agent.
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Effective Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that failure such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(d) All Subsidiaries (excluding Xxxxxxxxx Capital) which are guarantors of the series of notes issued by the Company pursuant to do so could not reasonably be expected to (i) the Note Purchase Agreement dated as of June 1, 2007, entered into by the Company and each of the purchasers listed in Schedule A thereto and (ii) the Note Purchase Agreement dated as of November 14, 2008, entered into by the Company and each of the purchasers listed in Schedule A thereto, shall have a Material Adverse Effect;been (or, substantially contemporaneously with the occurrence of the Effective Date, shall be) released from their respective guarantees.
Appears in 1 contract
Samples: Credit Agreement (Donaldson Co Inc)
Conditions of Initial Credit Extension. The obligation obligations of the L/C Issuer and each Lender to make its initial Credit Extension Extensions hereunder is are 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 and each of the Lenders:
(i) executed counterparts of this Agreement and the GuarantyAgreement, 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 Note.Notes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a certificate from a Responsible Officers Officer of each of the Loan Party as Parties (A) attesting to the Administrative Agent may require resolutions of such Person’s Board of Directors (or equivalent) and, if necessary, shareholders (or equivalent) of such Person, authorizing its execution, delivery, and performance of this Agreement and any other Loan Documents to which such Person is to become a party, (B) 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, and (C) certifying as true, correct and complete, copies of such Person’s Organization Documents, as amended, modified, or is supplemented to be a partythe date hereof;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are 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 Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender and in form and substance satisfactory to the Administrative Agent;
(vi) a certificate of a Responsible Officer (x) 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 and (y) 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 duly completed Compliance Certificate as of the last day of the fiscal quarter of Equinix ended on September 30, 2017 (provided that compliance with financial covenants shall be calculated on a pro forma basis after giving effect to the Indebtedness incurred hereunder and the use of proceeds thereof on the Closing Date), signed by a Responsible Officer of the Borrower;
(viii) pay-off statements and/or lien release authorizations from the Existing Administrative Agent with respect to all obligations under the Existing Credit Agreement and other Existing Loan Documents;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) lien search results, dated as of a recent date, together with copies of all effective Uniform Commercial Code financing statements that name any Loan Party as debtor; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer or the Required Lenders reasonably may require.
(b) Any fees required to be paid to the Administrative Agent, the Left Lead Arranger or the Lenders on or before the Closing Date shall have been paid, including, without limitation, any fees to Lenders as shall have been separately agreed upon in writing in the amounts so specified.
(c) 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 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). -91- 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 (Equinix Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Except to the extent permitted to be delivered pursuant to Section 7.16, 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 Agreement, the Security Agreements described in clauses (a) and (b) of the definition thereof, the Pledge Agreements described in clauses (a) and (b) of the definition thereof, the Company Guaranty and the GuarantySubsidiary Guaranties described in clauses (a) and (b) of the definition thereof, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) a Note Notes executed by the Borrower Borrowers in favor of each Lender requesting a Note.Notes;
(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) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are each Loan 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) favorable opinions of counsel to the Loan Parties addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the 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 Company 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;
(viii) evidence that all amounts owing under the Existing Credit Agreement to Existing Lenders who elect not to become Lenders hereunder, if any, and all accrued and unpaid interest and fees owing to the Lenders and the L/C Issuer under the Existing Credit Agreement have been, or concurrently with the funding of the Loans on the date hereof will be, paid;
(ix) a complete search of the records of each filing office where a financing statement (including under the Uniform Commercial Code) naming a Loan Party or any other party must be filed to perfect Administrative Agent’s security interest and Lien, for the benefit of the Secured Parties, in any of the Collateral, which searches shall be satisfactory to Administrative Agent;
(x) delivery of Uniform Commercial Code financing statements suitable in form and substance for filing in all places required by applicable law to perfect the Liens of the Administrative Agent under the Security Instruments as a first priority Lien 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 reasonably necessary under applicable Law to perfect the Liens of the Administrative Agent under such Security Instruments as a first priority Lien (subject only to Permitted Liens) in and to such other Collateral as the Administrative Agent may require including without limitation the delivery by the Loan Parties of certificates evidencing certain pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(xi) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all 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 Company and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Tetra Tech Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, 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 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 and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead 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 (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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the financial statements for the fiscal quarter ended October 30, 2010 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses 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, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Parent and its Subsidiaries most recently ended prior to the Closing Date, signed by a Responsible Officer of the Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agents required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement satisfactory in form and substance to the Administrative Agent evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(x) all releases, terminations and such other documents as Administrative Agent may request to evidence and effectuate the termination by the agent and lenders under the Existing Credit Agreement of their respective financing arrangements with Borrowers and Guarantors and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of each Borrower and Guarantor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (A) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or Guarantor, as debtor; and (B) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or Guarantor in favor of it or any of them, in form acceptable for recording with the appropriate Governmental Authority;
(xi) the Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(xii) all other Loan Documents, each duly executed by the applicable Loan Parties;
(xiii) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Agents
(xiv) a written report regarding the results of a field examination of the Loan Parties (other than SOW), which shall be satisfactory to the Agents;
(xv) results of searches or other evidence reasonably satisfactory to the Agents (in each case dated as of a date reasonably satisfactory to the Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, and releases or subordination agreements satisfactory to the Agents are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(xvi) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral 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 Collateral Agent, (B) the Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements as required by the Collateral Agent;
(xvii) evidence that the stated maturities of the Subordinated Indebtedness have been extended to a date that is at least three (3) months after the Maturity Date; and
(xviii) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby, and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $25,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the week ended most recently ended prior to the Closing Date, and executed by a Responsible Officer of the Lead Borrower.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 and the GuarantyGuaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrowers;
(ii) a Note Notes executed by the Borrower Borrowers in favor of each Lender requesting a Note.Notes;
(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) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower Borrowers and its Subsidiaries are the other Loan Parties is validly existing, and to the extent applicable, 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 (i) Hunton Xxxxxxx Xxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H-1, (ii) NautaDutilh, Dutch, Curaçao, and Luxembourg counsel to the Loan Parties, addressed to the Administrative Agent and each Lender that is a Lender on the date hereof, as to the matters set forth in Exhibits H-2, H-3, and H-4 respectively, (iii) Norton Xxxx Xxxxxxxxx Canada LLP, Canadian counsel to the Loan Parties, addressed to the Administrative Agent and each Lender as to the matters set forth in Exhibit X-0, (xx) Xxxxxxx Xxxxxxx Speechlys LLP, UK counsel to the Loan Parties, addressed to the Administrative Agent and each Lender as to the matters set forth in Exhibit H-6, (v) Xxxxxx and Xxxxxx, Ireland counsel to the Loan Parties, addressed to the Administrative Agent and each Lender as to the matters set forth in Exhibit H-7, and (vi) Triay & Xxxxx, Gibraltar counsel to the Loan Parties, addressed to the Administrative Agent and each Lender as to the matters set forth in Exhibit H-8, and in each case such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate of a Responsible Officer of each Borrower 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 Parent 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;
(viii) a duly executed and delivered copy of the Subordination Agreement reasonably satisfactory to the Administrative Agent subordinating all intercompany indebtedness among the Loan Parties to the Obligations substantially in the form of Exhibit I;
(ix) a duly executed and delivered copy of the Contribution and Indemnity Agreement among the Guarantors apportioning the rights and obligations of each Guarantor substantially in the form of Exhibit J; and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Each Lender shall have obtained all applicable licenses, consents, permits and approvals as deemed necessary by such Lender in order to execute and perform the transactions contemplated by the Loan Documents.
(c) Any fees required to be paid on or before the Closing Date shall have been paid.
(d) Unless waived by the Administrative Agent, the Parent shall have paid all 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 Parent and the Administrative Agent).
(e) All Committed Loans outstanding under the Sixth Amended and Restated Credit Agreement shall have been repaid, and all accrued but unpaid interest, commitment fees, and other amounts outstanding thereunder, including all amounts required pursuant to Section 3.05, shall have been paid in full; provided that, for the avoidance of doubt, the Existing Letters of Credit shall remain outstanding as Letters of Credit hereunder and shall be subject to and governed by the terms and conditions hereof.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 and each of the LendersAgent:
(i) executed counterparts of this Agreement and the GuarantyGuaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrowers;
(ii) a Note Notes executed by the Borrower Borrowers in favor of each Lender requesting a Note.Notes;
(iii) such certificates of resolutions or other action, equivalent action and incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require reasonably request evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require request to evidence that each Loan Party is duly organized or formed, validly existing and that each of the Borrower and its Subsidiaries are validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownershipof organization;
(v) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, lease (B) that there has been no event or operation circumstance since the date of properties the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the conduct of its business requires such qualificationaggregate, a Material Adverse Effect; (C) the current Debt Ratings and (D) that, except as set forth on Schedule 5.06(b), there are no actions, suits, investigations or proceedings pending or, to the extent knowledge of the Company, threatened in any court or before any arbitrator or governmental authority that failure to do so could not would reasonably be expected to have a Material Adverse Effect;; and
(vi) opinions of (i) Tarrant Sibley, Esq., Senior Vice President and Deputy General Counsel of the Company, substantially in the form of Exhibit I-1 hereto, (ii) Xxxxxxxxx Xxxxxx, Legal Director of Hasbro SA, substantially in the form of Exhibit I-2 hereto and (iii) Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, special New York counsel to the Loan Parties, substantially in the form of Exhibit I-3 hereto.
(b) All accrued and invoiced fees and expenses of the Lead Arrangers, the Administrative Agent and the Lenders (including the fees and expenses of counsel for the Administrative Agent) required to be paid on or before the Closing Date shall have been paid.
(c) All obligations under the Existing Credit Agreement (other than obligations in respect of Existing Letters of Credit which shall be deemed to be Letters of Credit issued under this Agreement pursuant to Section 10.20) shall have been paid in full and all commitments thereunder of lenders party thereto who are not parties to this Agreement shall have been terminated and all commitments thereunder of the Lenders party to this Agreement shall be evidenced only by this Agreement. Without limiting the generality of the provisions of Section 9.04, 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 Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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) or electronic copies (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 Subsidiary Guaranty, in each case sufficient in number for distribution to the Administrative Agent, each Lender Lender, Parent, 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 or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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) favorable opinions of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, and Xxxxxxx LLP, counsel to Borrower and Parent, each addressed to Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as 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 of any Governmental Authority 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 Parent, for itself and on behalf of Borrower, certifying (A) that the conditions specified in Sections 6.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since December 31, 2018 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a duly completed Unencumbered Property Report and Compliance Certificate certifying compliance with the financial covenants set forth in Section 9.13, in each case prepared as of September 30, 2019, on a pro forma basis, and signed by a Responsible Officer of Parent, for itself and on behalf of Borrower;
(ix) such other certificates, documents, instruments or information as Administrative Agent, L/C Issuer, Swing Line Lender or Required Lenders may reasonably require, including the Borrower’s Instruction Certificate and Borrower Remittance Instructions, if needed; and
(i) Upon the reasonable request of any Lender made at least seven (7) days prior to the Closing Date, Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least three (3) days prior to the Closing Date and (ii) at least three (3) days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(b) Any fees required to be paid pursuant to the Loan Documents on or before the Closing Date shall have been paid.
(c) Borrower and Parent shall have entered into amendments to all other senior Unsecured Debt facilities, each in form and substance reasonably satisfactory to Administrative Agent, as necessary to conform the applicable terms of such facilities to the definitions of “Capitalization Rate” and “Specified Capitalization Rate Properties” herein and the terms contained in Section 9.13; provided that, notwithstanding the foregoing, Borrower and Parent shall only be required to use commercially reasonable efforts to enter into such conforming amendments relating to their 4.29% Guaranteed Senior Notes due August 6, 2025, their 3.93% Guaranteed Senior Notes due July 13, 2027 and their 3.88% Series 2019A Guaranteed Senior Notes due July 16, 2029 and 4.03% Series 2019B Guaranteed Senior Notes due July 16, 2034.
(d) Unless waived by Administrative Agent, Borrower shall have paid all fees, charges and disbursements of counsel to Administrative Agent (directly to such counsel if requested by Administrative Agent) required to be paid pursuant to the Loan Documents 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.03, for purposes of determining compliance with the conditions specified in this Section 6.01, 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 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 Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 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 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) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed;
(v) a favorable opinion of Xxxxxxxx & Xxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and that each Lender, substantially in the form set forth in Exhibit F;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and its Subsidiaries are validly existing(b) have been satisfied, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease (B) that there has been no event or operation circumstance since the date of properties the Audited Financial Statements that has had or the conduct of its business requires such qualification, except to the extent that failure to do so could not be reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect;
(vii) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated; 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 to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced in detail not less than one Business Day prior to the Closing Date.
(d) The Closing Date shall have occurred on or before September 30, 2012. 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 (Encore Wire Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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 and the GuarantyAgreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) a Note Notes executed by the Borrower Borrowers in favor of each Lender requesting a Note.Notes;
(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 or is to be a party;
(iv) such 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 Borrower and its Subsidiaries are Borrowers is validly existing, in good standing (to the extent such certification is available) 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 would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Drinker Xxxxxx & Xxxxx LLP, counsel to the domestic Borrowers, and Xxxxx & XxXxxxxx, counsel to the Foreign Obligors in form and substance reasonably acceptable to Administrative Agent and its counsel and addressed to Administrative Agent and each Lender and;
(vi) a certificate of a Responsible Officer of each Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower and the validity against such 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 Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Company most recently ended prior to the Closing Date;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Company ended on March 31, 2013, signed by a Responsible Officer of the Company;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all 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 Company and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 14, 2013. 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 Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension 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, facsimiles 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 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 reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrower Borrowers in favor of each Lender requesting a Note.;
(iii) such certificates 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 (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 be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 qualify in such jurisdiction would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion(s) of Proskauer Rose LLP, counsel to the Loan Parties, addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (1) that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied, (2) 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, (3) to the Solvency of the Loan Parties, on a consolidated basis, as of the Closing Date after giving effect to the Transactions, and (4) either that (x) no consents, licenses 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, or (y) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) certificates of insurance evidencing insurance required to be maintained by Section 6.02(a);
(viii) a payoff letter from the agent for the lenders under the Existing Term Loan Agreement reasonably satisfactory in form and substance to the Agent evidencing that the Existing Term Loan Agreement has been or substantially concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Term Loan Agreement have been or substantially concurrently with the Closing Date are being released;
(ix) the Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) the Intercreditor Agreement, duly executed by all applicable parties;
(xi) the Confirmation Agreement, Facility Guaranty, Perfection Certificate, Grant of Security Interest in Trademarks, Disbursement Letter, Post-Closing Letter and Borrowing Base Certificate, each duly executed by the applicable Loan Parties;
(xii) results of searches or other evidence reasonably satisfactory to the 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, 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 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 Uniform Commercial Code 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 and (B) the DDA Notifications, Credit Card Notifications required pursuant to Section 6.11 hereof; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) After giving effect to the Transactions, including, without limitation (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment (including, without limitation, the Existing Letters of Credit), Availability, after giving pro forma effect to the Closing Date Dividend, shall be not less than $100,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on August 25, 2016, and executed by a Responsible Officer of the Lead Borrower.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its respective initial Credit Extension 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) or electronic copies (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 and the Subsidiary Guaranty, in each case sufficient in number for distribution to the Administrative Agent, each Lender Lender, Parent, 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 or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries are Loan 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 & Xxxxxxxx LLP, counsel to the Loan Parties, addressed to Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as 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 Parent, for itself and on behalf of Borrower, certifying (A) that the conditions specified in Sections 5.02(a) and (b) have been satisfied; (B) that except for any changes arising from Parent’s issuance of 6,900,000 shares of its common stock in May 2017, 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) no action, suit, investigation or proceeding is pending or, the knowledge of any Loan Party, threatened in any court or before any arbitrator or governmental authority related to the transactions contemplated by this Agreement or that could reasonably be expected to have a Material Adverse Effect;
(viii) a duly completed Compliance Certificate certifying compliance with all financial covenants set forth in Section 8.15, in each case prepared as of June 30, 2017, on a pro forma basis, and signed by a Responsible Officer of Borrower and Parent;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(x) such other assurances, certificates, documents, consents or opinions as Administrative Agent, L/C Issuer, Swing Line Lender or Required Lenders may reasonably require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Administrative Agent, Borrower shall have paid all fees, charges and disbursements of counsel to Administrative Agent (directly to such counsel if requested by 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 Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 5.01, 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 Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
