Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been met: (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 each Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders: (i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower; (ii) a Note executed by each Borrower in favor of each Lender requesting a Note; (iii) the AFG Guaranty, duly executed by AFG; (iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each 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 Borrower is a party; (v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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 Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably request; (vii) 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; (viii) a certificate signed by a Responsible Officer of AFG 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) the current Debt Ratings; (ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG; (x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full; (xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and (xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require. (b) Any fees related to this Agreement required to be paid 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 the Borrowers and the Administrative Agent). (d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (American Financial Group Inc), Credit Agreement (Great American Financial Resources Inc)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer, the Swing Line Lender, and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each 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 Guaranties sufficient in number for distribution to the Administrative Agent, each Lender Lender, and the Borrower for each BorrowerInitial Unencumbered Property;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) copies of the AFG GuarantyOrganization 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, duly executed where applicable, and certified by AFGa 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 Borrower 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 Borrower Loan Party is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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 Xxxxxxx, Xxxxxxxx & XxxxxxxDLA Piper LLP (US), counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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 AFG the Borrower certifying (A) that the conditions specified in Sections 4.02(a5.02(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) the current Debt Ratings;
(ix) a duly completed Compliance Certificate for as of the period ending December 31, 2005Closing Date, signed by a Responsible Officer of AFGthe Borrower;
(x) evidence that the Existing AFG Credit Agreement has been or concurrently with the Closing Date is being terminated and any Liens securing obligations under the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in fullreleased;
(xi) executed Subordination evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xii) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xiii) the Borrower shall have provided to the Administrative Agent and each Lender the documentation and other information requested by the Administrative Agent or such Lender in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each Borrower’s Subsidiaries case at least five (5) Business Days prior to the Closing Date;
(xiv) at least five days prior to the Closing Date, each Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and Affiliates any Lender requesting the same, a Beneficial Ownership Certification in relation to which such Loan Party or such Subsidiary, in each Borrower has any Indebtednesscase at least five (5) Business Days prior to the Closing Date; and
(xiixv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the Swing Line Lender, the L/C Issuers or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 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 having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of each the signing Loan Party, each dated the Closing Date Party (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:if applicable):
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as Loan Party 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 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that copies of each Loan Party is duly organized Party’s certificate or formed, articles of incorporation and that each Loan Party is validly existing, in bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and qualified to engage in business in from each jurisdiction where its such Loan Party’s 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;
(viv) a favorable opinion of Xxxxxxx(x) Skadden, Xxxxxxxx Arps, Slate, Xxxxxxx & XxxxxxxXxxx LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to the customary matters concerning AFG and its Subsidiaries the Domestic Loan Parties and the Loan Documents Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Required Lenders may reasonably requestCanadian Loan Parties and the Loan Documents;
(vii) 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;
(viiivi) a certificate signed by a Responsible Officer of AFG the Lead Borrower, satisfactory in form and substance to the Agents, certifying (A) that the conditions specified in Sections 4.02(a) and (b4.02(b) have been satisfied, and (B) either that there has been (1) no event consents, licenses or circumstance since approvals are required in connection with the date execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Audited Financial Statements Loan Documents to which it is a party, or (2) that has had or could be reasonably expected to haveall such consents, either individually or licenses and approvals have been obtained and are in the aggregatefull force and effect, a Material Adverse Effect; and (C) that, as of the current Debt RatingsClosing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a duly completed Compliance Certificate payoff letter from the agent for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(x) evidence lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being terminated paid in full (except to the extent expressly set forth therein), and all outstanding fees Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and interest related thereto have been paid copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in fullblank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed Subordination Agreement by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each Borrower’s Subsidiaries case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Affiliates Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to which each Borrower has any Indebtednessthe Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xiixv) such other assurances(A) all UCC financing statements and PPSA financing statements, certificates, documents, consents required by Law or opinions as reasonably requested by the Administrative Agent Agents or the Required Lenders reasonably may requireCanadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.13 hereof.
(b) Any After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paidpaid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(cj) Unless waived by the Administrative Agent, the The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsel counsels to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute its such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate estimates shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agentany Agent or Arranger).
(dk) The Agents 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.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before April 15July 31, 20062009. The Administrative 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 (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have consented Consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented 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 (Quiksilver Inc), Credit Agreement (Quiksilver 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 having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or in electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each 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 AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, Parties reasonably acceptable to Agent addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may in form and substance reasonably requestsatisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; , and (C) after giving effect to this Agreement and the current Debt Ratingsother Loan Documents (including after giving effect to the initial Loans under this Agreement), Borrower will be Solvent;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a duly completed Compliance Certificate for as of the period ending December 31last day of the fiscal quarter of Borrower ended June 30, 20052013, signed by a Responsible Officer of AFGBorrower;
(x) evidence that all commitments under that certain Credit Agreement dated as of February 10, 2011 among Borrower and MUFG Union Bank, N.A., as administrative agent and lender (as amended and restated from time to time, the “Existing Credit Agreement”), have been or concurrently with the Closing Date are being terminated, and all outstanding amounts thereunder paid in full and all Liens securing obligations under the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednessreleased; and
(xiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid in connection with this Agreement (including but not limited to the Agent Fee Letter) on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15November 27, 20062013. Without limiting the generality of the provisions of the last sentence of Section 9.049.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Resmed Inc), Credit Agreement (Resmed 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 having been metprecedent:
(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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:):
(i) executed counterparts of this AgreementAgreement and the Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrowerthe Borrowers;
(ii) a Note executed by each the applicable Borrower in favor of each Lender requesting a NoteNote with respect to the applicable Facility;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions, written resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower Loan Party as the Administrative Agent may reasonably require and as are customary evidencing the identity, legal authority and legal 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require and as are customary to evidence that each Loan Party is duly incorporated, organized or formed, and that 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;
(viv) a favorable opinion of Xxxxxxx(A) O’Melveny & Xxxxx LLP, Xxxxxxxx counsel to the Loan Parties and (B) Xxxxxxx Xxxx & Xxxxxxx, counsel to the Loan PartiesCayman Borrower, in each case, addressed to the Administrative Agent and each Lender, as to in substantially the matters form of Exhibits G-1 and G-2 annexed hereto concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents (which opinions shall expressly permit, in a customary manner, reliance by successors and permitted assigns of the Administrative Agent and the Lenders);
(vi) evidence of receipt of all material governmental, shareholder and third party consents (including Xxxx-Xxxxx-Xxxxxx clearance) and approvals necessary in connection with the Transactions and expiration of all applicable waiting periods without any adverse action being taken by any competent authority; except, in any such case, that would not prevent or impose any material adverse conditions on Holdings, the Borrowers, the Target or their respective Subsidiaries taken as a whole or the Required Lenders may reasonably requestconsummation of the Transactions;
(vii) 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 pro forma consolidated balance sheet as of the Loan Documents end of the most recently ended fiscal year and fiscal quarter ended at least 45 days before the Closing Date and related statements of income and cash flows of Holdings and its Subsidiaries after giving effect to which it is all elements of the Transactions to be effected on or before the Closing Date for the most recently ended fiscal year and fiscal quarter ended at least 45 days before the Closing Date, together with a party, certificate signed by the chief financial officer of Holdings to the effect that such statements accurately present in all material respects the pro forma financial position of Holdings and such consents, licenses its Subsidiaries in accordance with GAAP (and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredany event after giving effect to the Transactions);
(viii) a certificate signed by a Responsible Officer the chief financial officer of AFG Holdings, certifying that:
(A) that the conditions specified Specified Representations are true and correct in Sections 4.02(aall material respects (or, with respect to representations and warranties modified by materiality standards, in all respects) and (b) have been satisfied, and (B) that there has been no event or circumstance since as of the date of the Audited Financial Statements initial Credit Extensions (except to the extent such representations and warranties relate to an earlier date, as of such earlier date);
(B) the Specified Acquisition Agreement Representations are true and correct, pursuant to the standards set forth in the Acquisition Agreement, except to the extent neither Holdings, the Cayman Borrower nor any of their Affiliates has the right to terminate the Acquisition Agreement as a result of the inaccuracy of any such Specified Acquisition Agreement Representation (determined without regard to whether any notice is required to be delivered by Holdings, the Cayman Borrower or either of their Affiliates);
(C) certifying that Holdings and its Subsidiaries on a consolidated basis (after giving effect to the Transactions and the incurrence and repayment of Debt related thereto) are Solvent; and
(D) that after giving pro forma effect to the Transactions, the Consolidated Leverage Ratio is not greater than 1.50 to 1.00, together with supporting calculations therefor;
(ix) 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 had been reasonably requested by any Lender not less than five business days prior to the Closing Date;
(x) payment of all accrued reasonable fees and expenses of the Arranger, the Administrative Agent (including the reasonable fees and expenses of one lead counsel (and any reasonably necessary local counsel) for the Administrative Agent and the Arranger) to the extent a reasonably detailed invoice has been delivered to the Borrowers at least two business days prior to the scheduled Closing Date (except as otherwise reasonably agreed by the Borrowers); and
(xi) the audited consolidated balance sheets and related consolidated statements of income and cash flows of the Target and its Subsidiaries for the fiscal years ended December 31, 2008, 2009, 2010 and, if available, 2011, and, to the extent available, the unaudited consolidated balance sheets and related consolidated statements of income and cash flows of the Target and its subsidiaries for each fiscal quarter ended after December 31, 2010 but not less than 45 days prior to the Closing Date.
(b) The Acquisition shall have been, or could substantially concurrently with the initial Credit Extensions shall be, consummated pursuant to the Acquisition Agreement, without giving effect to any amendments thereto or any consents or waivers that, in any such case, are materially adverse to the Lenders in their capacities as Lenders (it being understood that any modification or amendment to the definition of “Material Adverse Effect” or equivalent term in the Acquisition Agreement shall be reasonably expected deemed to havebe materially adverse to the Lenders in their capacities as Lenders), either without the consent of the Arranger, such consent not to be unreasonably withheld or delayed.
(c) There shall not have occurred any circumstance, development, event, condition, effect or change (a) since July 2, 2010 that, individually or in the aggregate, a has had an Acquisition Agreement Material Adverse Effect; and Effect on Holdings or the Cayman Borrower or (Cb) the current Debt Ratings;
(ix) a duly completed Compliance Certificate for the period ending since December 31, 20052010 that, signed by a Responsible Officer of AFG;individually or in the aggregate, has had or could reasonably be expected to have an Acquisition Agreement Material Adverse Effect on the Target.
(xd) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been Prior to or substantially concurrently with the Closing Date are being Date, the Refinancing, including the payment in full of all principal, interest, fees, expenses and other amounts outstanding under or in connection with the Existing Credit Agreement, shall have been consummated and all such obligations and indebtedness shall be terminated and all outstanding fees and interest related thereto any liens securing any such obligations shall have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may requireterminated.
(be) Any fees related to this Agreement required to be paid on or before the Closing Date pursuant to any Loan Document 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 be paid on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Western Digital Corp), Credit Agreement (Western Digital 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 having been metprecedent:
(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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreement and all other Collateral Documents, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, Parties acceptable to Agent addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestin form and substance satisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 June 30, 2010 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;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(xviii) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement insurance 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 maintained pursuant 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 Loan Documents has been obtained and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified is in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.effect;
Appears in 2 contracts
Samples: Credit Agreement (Greenway Medical Technologies Inc), Credit Agreement (Greenway Medical Technologies Inc)
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 having been metprecedent:
(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 each 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, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower the Borrowers in favor of each Lender requesting a NoteNote to the extent requested five (5) Business Days prior to the Restatement Effective Date;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party or is to become a party;
(viv) 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 Agreements) and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(vi) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably request;
(vii) 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;
(viiiv) a certificate signed by a Responsible Officer of AFG the Lead Borrower certifying (A) that as to the conditions specified set forth in Sections 4.02(aclauses (d) and (bh) of this Section 4.01;
(vi) evidence that the Debt Refinancing shall occur on the Restatement Effective Date and that all Indebtedness under the Existing NAI Credit Agreements (and all accrued interest and fees thereunder) shall be paid on the Restatement Effective Date and all commitments thereunder shall have been satisfied, and terminated;
(Bvii) that there has been no event or circumstance since a solvency certificate signed by the date Chief Financial Officer of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or Lead Borrower substantially in the aggregate, a Material Adverse Effect; and form attached hereto as Exhibit F;
(Cviii) the current Debt RatingsSecurity 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) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFGall other Loan Documents set forth on Schedule 4.01;
(x) evidence that all insurance required to be maintained pursuant to the Existing AFG Credit Agreement Loan Documents has been obtained and is in effect and that the Existing GAFRI Credit Agreement Collateral Agent has been named as loss payee and additional insured under each United States insurance policy with respect to such insurance as to which the Collateral Agent shall have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in fullrequested to be so named;
(xi) executed Subordination Agreement 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 each Borrower’s Subsidiaries 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 Affiliates all such documents and instruments shall have been (or have been authorized by the Loan Parties to which each Borrower has any Indebtednessbe) so filed, registered or recorded to the satisfaction of the Administrative Agent;
(xiv) a Committed Loan Notice; and
(xiixv) such a customary legal opinion (including no conflicts with all indentures and other assurancesmaterial debt documents of the Borrower) (A) from Xxxxxxx Xxxx & Xxxxx LLP, certificatescounsel to the Loan Parties, documents(B) from Xxxxxxxxx Traurig LLP, consents or opinions as California, Illinois, Massachusetts and Texas counsel to the Administrative Loan Parties, (C) from Xxxxxx PLC, Michigan counsel to the Loan Parties, (D) from Ice Xxxxxx, LLP, Indiana counsel to the Loan Parties, (E) from Xxxxxx Xxxxxx Xxxxxx & Xxxxxx LLP, Ohio counsel to the Loan Parties, and (F) Xxxxxxxxxxx, Xxxxxx & Xxxxxx LLP, Maine counsel to the Lead Borrower, in each case addressed to the Agent or the Required Lenders reasonably may requireand each Lender.
(b) Any [Reserved].
(c) The Merger shall have been or, substantially concurrently with the initial borrowing under this Agreement, shall be consummated.
(d) Since the date of the latest balance sheet included in the Audited Financial Statements, there shall not have occurred any Material Adverse Effect.
(e) The Arrangers shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(f) All fees related to this Agreement required to be paid on or before the Closing Restatement Effective Date shall have been paid.
(c) Unless waived by pursuant to this Agreement and reasonable and documented out-of-pocket expenses required to be paid on the Administrative AgentRestatement Effective Date pursuant to this Agreement, 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) in each case to the extent invoiced at least two business days prior to or on the Closing Restatement Effective Date, plus such additional shall have been paid (which amounts may be offset against the proceeds of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative AgentLoans).
(dg) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender at least five (5) Business Days prior to the proposed Closing Restatement Effective Date specifying its objection 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, that has been reasonably requested by the Arrangers at least 10 days prior to the Restatement Effective Date.
(h) (A) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except where qualified by materiality, in which case such representations and warranties that are qualified by materiality shall be true and correct in all respects) with the same effect as though such representations and warranties had been made on and as of the date hereof, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and accurate on and as of such earlier date) and (B) no Default or Event of Default shall exist or have occurred and be continuing on and as of the date of the making of such Loan and after giving effect thereto.
(i) The joinder to the Intercreditor Agreement and the Term Loan Documents shall each have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(j) Prior to or substantially simultaneously with the initial Credit Extension on the Restatement Effective Date, the Lead Borrower shall have incurred up to $1,145,000,000 of additional Term Loans under the Term Loan Credit Agreement.
(k) On the Restatement Effective Date, immediately after giving effect to all Credit Extensions made (or deemed to have been made) on the Restatement Effective Date, Excess Availability shall be not less than $1,000,000,000.
Appears in 2 contracts
Samples: Asset Based Revolving Credit Agreement (Safeway Stores 42, Inc.), Asset Based Revolving Credit Agreement (Albertsons Companies, Inc.)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder and the effectiveness of this Agreement is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each Loan Partythe Borrower, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each 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 the Borrower is a party;
(viv) 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 each Loan Party the Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably request;
(viiv) a certificate of a Responsible Officer of each the Borrower (A) stating that the representations and warranties contained in Article V are true and correct on and as of such date, as though made on and as of such date; (B) stating there is no action, suit, investigation or proceeding pending or threatened in writing in any court or before any arbitrator or Governmental Authority that purports (i) to materially and adversely affect the Borrower or its Subsidiaries, or (ii) to affect any transaction contemplated hereby or the ability of the Borrower to perform its obligations under this Agreement; and (C) either (Ai) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such the Borrower and the validity against such the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (Bii) stating that no such consents, licenses or approvals are so required;
(viiivi) a certificate signed by a Responsible Officer of AFG 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; and (CB) the current Debt Ratings;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xiivii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the applicable L/C Issuers, the Swing Line Lender or the Required Lenders reasonably may require;
(viii) evidence that the Existing Credit Agreements have been or concurrently with the Effective Date are being terminated; and
(ix) a favorable opinion of Xxxxxxx & Xxxxx LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender in form and substance reasonably satisfactory to the Administrative Agent.
(b) Any fees related to this Agreement required to be paid on or before the Closing Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(d) The Closing Date Upon the reasonable request of any Lender made at least ten days prior to the Effective Date, the Borrower shall have occurred on or before April 15provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, 2006including the PATRIOT Act, in each case at least five days prior to the Effective Date.
(e) At least five days prior to the Effective Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower. Without limiting the generality of the provisions of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Effective Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Republic Services, Inc.), Credit Agreement (Republic Services, Inc.)
Conditions of Initial Credit Extension. The obligation of each Lender to make its the initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative AgentLender’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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersLender:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Security Documents and each Borrowerthe Subsidiary Guaranty;
(ii) a Note Notes executed by each Borrower the Borrowers in favor of each Lender requesting a NoteLender;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower Loan Party as the Administrative Agent Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Borrower Loan Party is a party;
(viv) such 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 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & XxxxxxxBorrower’s In House Counsel, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Lender may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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) the current Debt Ratings;
(ixviii) a duly completed Compliance Certificate as of the last day of the most recent fiscal quarter of Company for which financial statements have been filed with the period ending December 31, 2005United States Securities and Exchange Commission, signed by a Responsible Officer of AFGCompany;
(xix) evidence that all insurance required to be maintained pursuant to the Existing AFG Credit Agreement Loan Documents has been obtained and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid is in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednesseffect; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders Lender reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative AgentLender, the Borrowers 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) Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and the Administrative AgentLender).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Diodes Inc /Del/), Credit Agreement (Diodes Inc /Del/)
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 having been metprecedent:
(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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrower and 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to each of the Loan Parties' corporate, regulatory and applicable local counsel, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably requestAdministrative Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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; and (C) the current Debt Ratings;
(ixviii) the audited financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2015 and the unaudited financial statements of the Borrower and its Subsidiaries for the fiscal quarter of the Borrower ended March 31, 2016 along with a duly completed Compliance Certificate for the period ending December 31, 2005Certificate, signed by a Responsible Officer of AFGthe Borrower;
(ix) evidence that all Prior Indebtedness has been paid in full in cash and all Liens securing such Prior Indebtedness have been terminated;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement insurance 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 maintained pursuant 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 Loan Documents has been obtained and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified is in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.effect; and
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Gas Natural Inc.)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each 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 sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, Parties acceptable to Agent addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestin form and substance satisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the current Debt RatingsLoan Documents has been obtained and is in effect;
(ixviii) a duly completed Compliance Certificate for as of the period ending December 31, 2005last day of the fiscal quarter of Borrower most recently ended prior to the Closing Date, signed by a Responsible Officer of AFGBorrower;
(xix) evidence that the Existing AFG Credit Agreement commitment letters from RBS Citizens, N.A. and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurancesTD Bank, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid 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 the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality N.A. for their pro-rata share 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.Commitment;
Appears in 2 contracts
Samples: Credit Agreement (Unitil Corp), Credit Agreement (Unitil Corp)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each 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 Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Revolving Note, a Tranche A Term Loan Note and a Tranche B Term Loan Note each executed by each Borrower in favor of each Lender requesting a Notesuch Notes;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications certificates as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, formed and that each Loan Party is Borrower is, validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan PartiesParties acceptable to Agent, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestin form and substance satisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 reasonably be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; , and (C) a calculation of the current Debt Ratingsfinancial covenants set forth in Section 6.12 as of the last day of the fiscal quarter of Borrower most recently ended prior to the Closing Date with said calculation showing each component of each calculation;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(x) evidence that (A) the Term Loan Agreement dated as of September 18, 2000, as amended, between Borrower and SunTrust Bank, (the “Existing Credit Agreement”) has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being released, (B) the Amended, Restated and Substituted Promissory Note dated as of April 2, 2003 executed by the Borrower in favor of Bank of America, N.A. (the “Existing Promissory Note”) has been or concurrently with the Closing Date is being terminated and all outstanding fees and interest related thereto Liens securing obligations under the Existing Promissory Note have been paid in full;
or concurrently with the Closing Date are being released, and (xiC) executed Subordination Agreement by each Borrower’s Subsidiaries the $10,000,000 Line of Credit between the Borrower and Affiliates to which each Borrower Bank of America, N.A. (the “Existing Line of Credit”) has any Indebtednessbeen or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing Line of Credit have been or concurrently with the Closing Date are being released; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 1530, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto2003.
Appears in 2 contracts
Samples: Credit Agreement (Hooker Furniture Corp), Credit Agreement (Hooker Furniture 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 having been metprecedent:
(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 Person of each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers Persons of each Borrower Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer Person thereof authorized to act as a Responsible Officer Person in connection with this Agreement and the other Loan Documents to which such Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, Parties acceptable to Agent addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestin form and substance satisfactory to Agent;
(viivi) a certificate of a Responsible Officer Person of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer Person of AFG Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that to the actual knowledge of Borrower 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 (C) the current Debt Ratingsis in effect;
(ix) a duly completed Compliance Certificate for subordination agreements from the period ending December 31holders of the Subordinated Liabilities, 2005, signed by a Responsible Officer of AFG;and
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent, the Administrative Agent L/C Issuer, Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent), but in no event to exceed $20,000 in the aggregate.
(d) The Closing Date shall have occurred on or before April 15February 28, 20062007. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Fresh Market, Inc.), Credit Agreement (Fresh Market, Inc.)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrower and 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;
(viv) a favorable opinion of Xxxxxxxin-house counsel to the Borrower and Xxxxx & Xxx Xxxxx, Xxxxxxxx & XxxxxxxPLLC, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F and such other matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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; and (C) the current Debt Ratings;
(ixviii) a duly completed Compliance Certificate for as of the period ending December last day of the fiscal quarter of the Borrower ended on July 31, 20052008, signed by a Responsible Officer of AFGthe Borrower;
(xix) evidence that (A) the Existing AFG $50,000,000 Revolving Credit Agreement Facility dated October 27, 2008, between the Borrower and Bank of America, N.A. and (B) the Existing GAFRI $25,000,000 Revolving Credit Agreement Facility dated October 29, 2008, between the Borrower and Branch Banking and Trust Company have been each been, or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednesssubstantially simultaneously herewith will be, terminated; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid by the Borrower pursuant to the Loan Documents on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Piedmont Natural Gas Co Inc), Credit Agreement (Piedmont Natural Gas Co Inc)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each 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 Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Agreement by the Administrative Agent, each Lender and each BorrowerLoan Party;
(ii) a Note executed by each Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) a payoff letter regarding the AFG Guaranty, duly executed by AFGExisting Credit Agreement;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Loan Party to be true and correct as of the Closing Date;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(vvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Party Parties is validly existing, in good standing and qualified to engage in business in its state of organization or formation, the state of its principal place of business and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could would not reasonably be expected to have a Material Adverse Effect;
(vivii) a favorable opinion of Xxxxxxx, Xxxxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, dated as of the Closing Date, and in form and substance reasonably satisfactory to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably request;
(vii) 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 requiredAdministrative Agent;
(viii) a certificate signed by a Responsible Officer of AFG the Company certifying (A) that the conditions specified in Sections 4.02(a5.01(c) and 5.02(a) and (b) have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Since December 31, 2006, there shall not have occurred a material adverse change in the Administrative Agentoperations, business, properties, liabilities (actual or contingent) or financial condition of the Borrowers Company or the Consolidated Group taken as a whole.
(d) The Company shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Credit Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Albemarle Corp), Credit Agreement (Albemarle Corp)
Conditions of Initial Credit Extension. The obligation of each Lender Bank to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each 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 content satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, and all Collateral Documents, including, without limitation, the Collateral Documents covering the Borrowing Base Oil and Gas Properties and related Collateral, and all other Loan Documents sufficient in number for distribution to the Administrative Agent, each Lender Banks and each BorrowerBorrowers;
(ii) a Note the Notes executed by each Borrower in favor of each Lender requesting a NoteBorrowers;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications certificates as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, including Certificates of Formation, and that each Loan Party is Borrowers 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;
(vi) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably request;
(viiv) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivi) a certificate signed by a Responsible Officer of AFG Borrowers 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 Current Financial Statements that has had or could reasonably be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; and
(vii) Transfer Order Letters applicable to the production of Hydrocarbons from all Borrowing Base Oil and Gas Properties.
(Cviii) executed counterparts to an amendment to that certain Intercreditor Agreement dated September 4, 2008 among Borrowers, Administrative Agent and BP Corporation North America Inc., as Approved Counterparty.
(b) Administrative Agent shall have received:
(i) evidence that all insurance required to be maintained pursuant to the current Debt RatingsLoan Documents has been obtained and is in effect;
(ixii) evidence, satisfactory to Administrative Agent in its sole discretion, that as of the execution, delivery, filing and recording of the Collateral Documents, Administrative Agent shall hold a duly completed Compliance Certificate perfected, first priority Lien (subject to Permitted Liens) in all Collateral for the period ending December 31, 2005, signed by a Responsible Officer of AFGLoan;
(xiii) evidence evidence, satisfactory to Administrative Agent, that the Existing AFG Credit Agreement Borrowers, each other applicable Loan Party and the Existing GAFRI Credit Agreement have been or concurrently Borrowing Base Oil and Gas Properties will comply in all material respects with all Environmental Laws and the Closing Date are being terminated applicable Laws and, to the extent applicable, regulations of the Department of Interior, Bureau of Land Management, the Bureau of Indian Affairs and all outstanding fees and interest related thereto have been paid in fullthe State of Kansas;
(xiiv) executed Subordination Agreement by the results of a Uniform Commercial Code search showing all financing statements and other documents or instruments on file against Borrowers and each Borrower’s Subsidiaries other Loan Party in the Offices of the Secretary of State of the state of formation of Borrowers and Affiliates each other Loan Party and each State in which any of the Borrowing Base Oil and Gas Properties are located or deemed to which each Borrower has any Indebtedness; andbe located, such search to be as of a date no more than ten days prior to the Closing Date;
(xiiv) copies of all Material Agreements, Debt Instruments and other agreements described in Section 5.24 or listed on Schedule 5.24;
(vi) such other assurances, certificates, documents, consents consents, evidence of perfection of all Liens securing the Obligations or opinions as the Administrative Agent or the Required Lenders reasonably may require; and
(vii) a favorable opinion of counsel (including local counsel with respect to the Collateral Documents) to the Loan Parties acceptable to Administrative Agent, addressed to Administrative Agent, as to such matters concerning the Loan Parties and the Loan Documents in form and content satisfactory to Administrative Agent.
(bc) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid, including, without limitation, any legal fees invoiced to the Loan Parties prior to the Closing Date in connection with the delivery of the opinions of counsel set forth in Section 4.01(b)(vii) above.
(cd) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs of Administrative Agent as shall constitute its Administrative Agent’s reasonable estimate of such fees, charges and disbursements Attorney Costs of Administrative Agent incurred or to be incurred by it Administrative Agent through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each 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 Lendersits legal counsel:
(i) executed counterparts of this Agreement, the Guaranty and the other Loan Documents, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrower and the Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;.
(viv) a favorable opinion of XxxxxxxWatt, Xxxxxxxx Tieder, Fxxxxxxxxx & XxxxxxxHxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG the Borrower certifying (A) that the conditions specified in Sections 4.02(aSection 5.2(a) and (bSection 5.2(b) have been satisfied, and 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 current Debt RatingsConsolidated Net Worth, the ratio of Total Funded Indebtedness to Consolidated EBITDA and the ratio of Consolidated EBITDAR to Fixed Charges Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement Agreements have been or concurrently with the Closing Date are being terminated and all outstanding fees obligations thereunder paid in full and interest related thereto all Liens securing obligations under the Existing SEAL Credit Agreement have been paid or concurrently with the Closing Date are being released or assigned to a Subsidiary or Affiliate of Borrower; and
(x) all existing original stock certificates and four (4) stock powers executed in fullblank for each share of stock pledged to the Lender’ as part of the Collateral and copies of any shareholders agreements related to such stock;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates a list of all management agreements to which each Sunrise Senior Living Management, Inc., Sunrise Senior Living Services, Inc. or any other Loan Party is a party as manager or operator of any Senior Living Facility and a written certification by the Borrower has stating which management agreements are currently assigned to a lender or prohibit assignment to a lender by their terms (the Borrower agrees that it will provide copies of any Indebtednessmanagement agreements requested by the Administrative Agent); and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15September 19, 2006. Without limiting 2003.
(e) There shall not have occurred any material disruption of or material adverse change in conditions in 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 financial banking or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to capital markets which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent and BAS, in their sole discretion, deem material in connection with syndication of the Credit Facility.
(f) There shall not have received notice from such Lender prior occurred a Material Adverse Effect on the business, assets, operations, condition (financial or otherwise) of the Borrower or any other Loan Party or their respective Affiliates or Subsidiaries or in the statements or information provided to the proposed Closing Date specifying its objection theretoAdministrative Agent regarding such entities.
(g) There shall not have occurred 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, the other Loan Parties or their respective Affiliates or Subsidiaries in a materially adverse manner or any transaction contemplated hereby, or that could reasonably be expected to have a Material Adverse Effect on the Borrower, the other Loan Parties or their respective affiliates or subsidiaries or any transaction contemplated hereby or on the ability of the Borrower, the other Loan Parties or their respective Affiliates or Subsidiaries to perform their obligations under the documents to be executed in connection with the Credit Facility.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative Agent’s Lender'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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersLender:
(i) executed counterparts of this AgreementAgreement and each other Loan Document, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a if requested by Lender, the Note executed by each Borrower in favor of each Lender requesting a Notethe Borrower;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower Loan Party as the Administrative Agent Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Borrower Loan Party is a party;
(viv) such 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 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx Faegre & XxxxxxxXxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably requestLender;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 Unaudited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and ;
(Cviii) a duly completed Compliance Certificate as of the current Debt Ratingslast day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date, pro forma for the transactions in this Agreement, signed by a Responsible Officer of the Borrower;
(ix) a duly completed Compliance Borrowing Base Certificate for as of the period ending December 31last day of the calendar month most recently ended prior to the Closing Date, 2005with such adjustments as are reasonably requested by the Lender to bring such Borrowing Base Certificate current to the Closing Date, signed along with such agings, reports and similar information relating to the Collateral as may be reasonably requested by a Responsible Officer of AFGthe Lender;
(x) evidence Uniform Commercial Code search results showing only those Liens that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been are (A) terminated on or concurrently with will be terminated before the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full(provided that satisfactory evidence of such termination or of satisfactory arrangements for such termination is delivered to the Lender prior to the Closing Date), (B) described on Schedule 7.01, or (C) otherwise acceptable to the Lender;
(xi) 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 Lender 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 necessary under applicable law to perfect the Liens of the Lender under the Security Instruments as a first priority Lien in and to such other Collateral as the Lender may require, including without limitation the delivery of any issued and outstanding certificates evidencing Pledged Interests, accompanied in each case by duly executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; andstock powers (or other appropriate transfer documents) in blank affixed thereto;
(xii) The Lender shall have had an opportunity, if it so chooses, to examine the books of account and other records and files of the Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and the Borrowing Base, and the results of such examination and audit shall have been satisfactory to the Lender in all respects.
(xiii) Mortgagee, landlord, and other third party waivers and agreements acceptable to Lenders relating to Inventory matters;
(xiv) No event has occurred and is continuing, or would result from such extension of credit, which has had or would (after giving effect thereto) reasonably be expected to have a Material Adverse Effect.
(xv) Evidence satisfactory to Lender that there shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or Governmental Authority that in Lender's judgment (a) could reasonably be expected to have a Material Adverse Effect, or (b) could reasonably be expected to materially and adversely affect this Agreement, any other Loan Document, or the transactions contemplated hereby or thereby.
(xvi) Receipt by Lender and a satisfactory review by Lender of all material contracts of the Loan Parties with material customers.
(xvii) Without limiting the generality of the items described above, each Loan Party shall have delivered or caused to be delivered to the Lender (in form and substance reasonably satisfactory to the Lender), the financial statements, instruments, resolutions, documents, agreements, certificates, opinions, and other items set forth on the "Closing Checklist" delivered by the Lender to Borrower prior to the Closing Date.
(xviii) an initial Request for Credit Extension, if any;
(xix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xx) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders Lender reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date Date, including, but not limited to, the Closing Fee, shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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) Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative AgentLender).
(d) The Upon making the Borrowing on the Closing Date (including such Loans made to finance the Closing Fee or otherwise as reimbursement for fees, costs, and expenses then payable under this Agreement), and with all its obligations current, the Borrower shall have occurred on or before April 15availability under the Borrowing Base of at least $2,500,000, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior after giving effect to the proposed Closing Date specifying its objection theretoreserve of any accounts payable by any Loan Party which are more than 60 days past invoice date.
Appears in 1 contract
Samples: Credit Agreement (Crocs, 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 having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or in electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each 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 AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, Parties reasonably acceptable to Agent addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may in form and substance reasonably requestsatisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; , and (C) after giving effect to this Agreement and the current Debt Ratingsother Loan Documents (including after giving effect to the initial Loans under this Agreement), Borrower will be Solvent;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a duly completed Compliance Certificate for as of the period ending December 31last day of the fiscal quarter of Borrower ended June 30, 20052013, signed by a Responsible Officer of AFGBorrower;
(x) evidence that all commitments under that certain Credit Agreement dated as of February 10, 2011 among Borrower and Union Bank, N.A., as administrative agent and lender (as amended and restated from time to time, the “Existing Credit Agreement”), have been or concurrently with the Closing Date are being terminated, and all outstanding amounts thereunder paid in full and all Liens securing obligations under the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednessreleased; and
(xiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid in connection with this Agreement (including but not limited to the Agent Fee Letter) on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15November 27, 20062013. Without limiting the generality of the provisions of the last sentence of Section 9.049.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Resmed Inc)
Conditions of Initial Credit Extension. The obligation of each Lender Bank to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative AgentBank’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 each 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 Bank and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Bank and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a NoteBank;
(iii) executed counterparts of the AFG Guaranty, duly executed by AFGsufficient in number for distribution to Bank and Borrower;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower Loan Party as the Administrative Agent Bank 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 Borrower Loan Party is a party;
(v) such documents and certifications as the Administrative Agent Bank may reasonably require to evidence that each Loan Party is duly organized or formed, formed and that Borrower and each Loan Party is 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 Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 be expected to have, either individually or in the aggregate, have a Material Adverse Effect; and (C) the current Debt Ratings;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(xviii) evidence that all insurance required to be maintained pursuant to the Existing AFG Credit Agreement Loan Documents has been obtained and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid is in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednesseffect; and
(xiiix) such other assurances, certificates, documents, consents consents, evidence of perfection of all Liens securing the Obligations or opinions as the Administrative Agent or the Required Lenders Bank reasonably may require.
(b) Bank’s receipt of the Collateral Documents, each of which shall be originals or 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 Bank and its legal counsel, together with:
(i) acknowledgment copies of all Uniform Commercial Code financing statements filed to perfect the security interests of Bank, or other evidence satisfactory to Bank that there has been filed all financing statements, registrations and other recordings necessary and advisable to perfect the Liens of Bank in accordance with applicable law;
(ii) all certificates and instruments representing the Collateral (including the Capital Stock of each first tier Material Subsidiary of the types and in the percentages described in Section 6.13(b) based on the organizational chart referred to in subsection (c) below), stock transfer powers executed in blank with signatures guaranteed as Bank may specify and, if relevant, a completed Federal Reserve Form U-1 for Bank;
(iii) evidence that all other actions necessary or, in the opinion of Bank, desirable to perfect and protect the first priority security interest created by the Collateral Documents and to enhance the ability of Bank to preserve and protect its interests in the Collateral have been taken.
(c) Bank’s receipt of the following information:
(i) a financial projection for Borrower and its Subsidiaries, prepared on a quarterly basis, for the fiscal year ending January 1, 2005 setting forth the projected revenues, expenses, assets, liabilities and equity and the underlying assumptions therefore, all in reasonable detail and certified by a Responsible Officer of Borrower as having been prepared and furnished to Bank in good faith and based on estimates and assumptions that were believed by the management of Borrower to be reasonable in light of the then current and foreseeable business conditions of Borrower and its Subsidiaries; and
(ii) an organizational chart for Borrower and its Subsidiaries as of January 3, 2004, setting forth the identity, ownership, location, revenues, assets and equity of each Person legally or beneficially owned, directly, or indirectly through one or more intermediaries, by Borrower, certified by a Responsible Officer of Borrower as being true and correct in all material respects.
(d) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(ce) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) Bank to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative AgentBank).
(df) The Closing Date shall have occurred on or before April July 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto2004.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender and the Letter of Credit Issuer to make its any initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall following items (except those items that are expressly permitted to be originals or telecopies (followed promptly by originals) unless otherwise specifieddelivered after the Closing Date pursuant to the Post-Closing Agreement), each properly executed by a Responsible Officer of each the applicable Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Agreement and each Borrowerof the Loan Documents;
(ii) a Note Notes executed by each Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) a Secretary’s certificate for each Loan Party certifying as to (A) true and complete copies of all Organization Documents of such Loan Party attached thereto, (B) resolutions of the AFG Guaranty, duly executed by AFG;
(iv) such certificates Board of resolutions Directors or other actionorganizational action authorizing execution, delivery and performance of all Loan Documents to which such Loan Party is a party, and (C) incumbency certificates and/or other certificates of Responsible Officers of each Borrower as the Administrative Agent may require officers (including specimen signatures) 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 Borrower Loan Party is a party;
(viv) such documents and certifications certification from any applicable Governmental Authority as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or organization and in any other jurisdiction in which 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, including certificates of good standing and qualification to engage in business in each applicable jurisdiction;
(viv) a favorable opinion of XxxxxxxXxxx, Xxxxxxxx Xxxxx & XxxxxxxXxxxxxx LLP, counsel to the Loan Parties, each addressed to the Administrative Agent and each LenderLender and their successors and assigns, as to the matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(viivi) a certificate certificates of a Responsible Officer Officers of each the Borrower Agent or the applicable Loan Parties either (A) attaching copies of identifying all consents, licenses and approvals required in connection with the execution, delivery and performance by such each Borrower and the validity against each such Borrower Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, and attaching true and correct copies thereof or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of AFG the Borrower Agent certifying (A) that the conditions specified in Sections 4.02(a5.02(a) and (b5.02(b) have been satisfied, satisfied and (B) that there has been no event or circumstance since as to the date matters described in Section 5.01(d);
(A) audited financial statements of Holdings and its Subsidiaries for each of the Audited Financial Statements that has had or could be reasonably expected to havethree fiscal years immediately preceding the Closing Date, either individually or in the aggregate(B) unaudited interim financial statements for Holdings and its Subsidiaries as of May 31, a Material Adverse Effect; and 2023, (C) preliminary unaudited interim financial statements for Holdings and its Subsidiaries as of June 30, 2023, and (D) financial projections (including but not limited to financial forecast models and liquidity forecasts) of Holdings and its Subsidiaries on a monthly basis for the current Debt Ratingsremainder of 2023 and for 2024 and on an annual basis for 2025;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, certificate signed by a Responsible the Chief Financial Officer or the Chief Accounting Officer of AFGthe Borrower Agent certifying that, after giving effect to the entering into of the Loan Documents and the consummation of all of the Transactions, (A) each Borrower is Solvent and (B) the Loan Parties, taken as a whole, are Solvent;
(x) evidence that all insurance required to be maintained pursuant to the Existing AFG Credit Agreement Loan Documents has been obtained and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid is in fulleffect;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; andan initial Borrowing Base Certificate;
(xii) initial written notice of Borrowing;
(xiii) 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 (subject to the Intercreditor Agreement) 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 in and to such other Collateral (subject to the Intercreditor Agreement) as the Administrative Agent may require;
(xiv) Uniform Commercial Code search results showing only those Liens as are acceptable to the Administrative Agent and Lenders;
(xv) evidence of the payment in full and cancellation of the Existing Agreement, including terminations of Uniform Commercial Code financing statements filed in connection with the Existing Agreement and other evidence of lien releases and other related matters on terms acceptable to the Administrative Agent;
(xvi) evidence satisfactory to the Administrative Agent of the consummation (in compliance with all applicable laws and regulations, with the receipt of all material governmental, shareholder and third party consents and approvals relating thereto) of the Transactions;
(xvii) copies of the Term Loan Documents, all certified as true and correct by the Borrower Agent;
(xviii) executed counterparts of the Post-Closing Agreement;
(xix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the Letter of Credit Issuer, the Swing Line Lender or the Required Lenders may reasonably may require.
(b) At least five days prior to the Closing Date, (i) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower and (ii) so long as requested by the Agent or any Lender at least ten days prior to the Closing Date, Borrowers shall have provided to Agent and each requesting Lender the documentation and other information so requested in connection with applicable “know your customer” and Anti-Money Laundering Laws or Anti-Corruption Laws, including the PATRIOT Act.
(c) Administrative Agent and its counsel shall have completed all legal, tax and regulatory due diligence, including without limitation review of all documentation required by bank regulatory authorities under applicable Anti-Corruption Laws and Anti-Money Laundering Laws, the results of which shall be satisfactory to Administrative Agent in its sole discretion.
(d) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been been, or concurrently with the satisfaction of the requirements in this Section 5.01, will be, paid.
(ce) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(df) The Closing Date Administrative Agent shall be satisfied that after giving effect to (i) the initial Credit Extension hereunder, (ii) consummation of the Transactions and payment of all fees and expenses in connection therewith and (iii) any payables stretched beyond their customary payment practices, Availability shall be greater than the greater of (x) 30% of the Maximum Borrowing Amount (without giving effect to the Term Loan Push Down Reserve) at such time and (y) $15,000,000.
(g) The Administrative Agent shall have occurred on or before April 15received a Field Exam and an appraisal of the Loan Parties’ inventory, 2006each in form and substance reasonably satisfactory to the Administrative Agent.
(h) The Administrative Agent’s and each Lender’s respective investment committees shall have approved this Agreement and the transactions contemplated hereby.
(i) The capital structure of the Loan Parties and their Subsidiaries shall be satisfactory to Administrative Agent. Without limiting the generality of the provisions of Section 9.0410.04, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each Loan Partythe 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 Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each the Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each such Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such the Borrower is a party;
(viv) 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 and each Loan Party Material Insurance Subsidiary is validly existing, existing and in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation state 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 Effectincorporation and/or domicile;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to the matters concerning AFG and its Subsidiaries the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such the Borrower and the validity against such the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 December 31, 2004 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;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(xviii) evidence that the Existing AFG Credit Agreement has been or concurrently with the Closing Date is being terminated and that obligations under the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednesssatisfied; and
(xiiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any All fees related to this Agreement and expenses required to be paid in connection with this Agreement and (in the case of such expenses) for which invoices have been presented 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 the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15March 31, 20062005. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the The Administrative Agent shall have received notify the Borrower and the Lenders of the Closing Date, and such notice from such Lender prior to the proposed Closing Date specifying its objection theretoshall be conclusive and binding.
Appears in 1 contract
Samples: Credit Agreement (Safeco Corp)
Conditions of Initial Credit Extension. The obligation of each Lender to make its any initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall following items (except those items that are expressly permitted to be originals or telecopies (followed promptly by originals) unless otherwise specifieddelivered after the Effective Date pursuant to Section 7.21), each properly executed by a Responsible Officer of each the applicable Loan PartyParty (as applicable), each dated as of the Closing Effective Date (or, in the case of certificates of governmental officialsGovernmental 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, sufficient in number for distribution to the Administrative AgentIntercreditor Agreement, each Lender and each Borrowerof the Security Instruments;
(ii) a Note Notes executed by each Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates (including specimen signatures), and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or organization and in any other jurisdiction in which 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, including certified copies of such Loan Party’s Organization Documents, agreements among holders of Equity Interests, certificates of good standing and qualification to engage in business in each applicable jurisdiction;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxxxx Xxxxxxx, counsel to the Loan Parties, and acceptable local counsel to the Loan Parties, each addressed to the Administrative Agent and each LenderLender and their successors and assigns, as to the matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(viivi) a certificate certificates of a Responsible Officer Officers of each the Borrower Agent or the applicable Loan Parties either (A) attaching copies of identifying all consents, licenses and approvals required in connection with the execution, delivery and performance by such each Borrower and the validity against each such Borrower Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, and attaching true and correct copies thereof or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of AFG the Borrower Agent certifying (A) that the conditions specified in Sections 4.02(a5.02(a) and (b5.02(b) have been satisfied, and ;
(Bviii) that there has been no event or circumstance since the date evidence of the Audited Financial Statements that has had or could be reasonably expected payment in full and cancellation of the Existing Credit Facility, including terminations of Uniform Commercial Code financing statements filed in connection with the Existing Agreement and other evidence of lien releases and other related matters on terms acceptable to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt RatingsAdministrative Agent;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, certificate signed by the chief financial officer or the chief executive officer of the Borrower Agent certifying that, after giving effect to the entering into of the Loan Documents and the consummation of all of the Transactions, (A) each Borrower is Solvent and (B) the Loan Parties on a Responsible Officer of AFGConsolidated basis, taken as a whole, are Solvent;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full[reserved];
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and[reserved];
(xii) initial notice of Borrowing in form and substance satisfactory to the Administrative Agent;
(xiii) receipt and satisfactory review by Administrative Agent of appraisals of Rolling Stock and Aircraft, and management background checks;
(xiv) [reserved];
(xv) 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 Term Loan Priority Collateral and second priority Lien as to items of ABL Priority 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 in and to such other Term Loan Priority Collateral and second priority Lien as to items of ABL Priority Collateral as the Administrative Agent may require;
(xvi) Uniform Commercial Code search results showing only those Liens as are acceptable to the Administrative Agent and Lenders;
(xvii) evidence satisfactory to the Administrative Agent of (A) the redemption and cancellation of all shares of “preferred stock”, (B) the payment in full and cancellation of Indebtedness not permitted under the Loan Documents and (C) release of any liens (other than Permitted Liens) on the assets of the Company and its Subsidiaries;
(xviii) receipt of (i) audited financial statements for fiscal year 2017; (ii) unaudited quarterly financial statements (including an income statement and a balance sheet) for each quarter of fiscal year 2018; (iii) unaudited monthly financial statements (including an income statement and a balance sheet) for the first month of fiscal year 2019; (iv) projected financial statements for the combined entity through fiscal year 2023; and (v) a closing balance sheet adjusted to give effect to the transactions contemplated hereby; all of the foregoing in form and substance acceptable to the Arranger;
(xix) the Administrative Agent shall have received at least two (2) Business Days in advance of the Effective Date, to the extent requested not less than ten (10) Business Days prior thereto, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and Anti-Money Laundering rules and regulations, including without limitation the USA PATRIOT Act and the FinCEN Beneficial Ownership Regulation;
(xx) Except as disclosed in writing to the Administrative Agent prior to the Effective Date, since December 31, 2018 with respect to the Company and its Subsidiaries, the business of the Loan Parties has in all material respects been conducted in the Ordinary Course of Business consistent with past practices, and there has not been any event, occurrence, condition, development or state of circumstances or fact that, individually or in the aggregate with any other event(s), occurrence(s), condition(s), development(s) or state(s) of circumstances or fact(s), has had or would reasonably be expected to have a Material Adverse Effect;
(xxi) evidence satisfactory to the Administrative Agent of the consummation (in compliance with all applicable laws and regulations, and with the receipt of all material shareholder and third party consents and approvals relating thereto) of the Transactions;
(xxii) copies of the ABL Loan Agreement and all related guaranties and collateral documents;
(xxiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders may reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Effective Date, plus such additional amounts of such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006[Reserved]. Without limiting the generality of the provisions of Section 9.0410.04, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Effective Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Roadrunner Transportation Systems, Inc.)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative AgentLender’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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersLender:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a the Note;
(iii) the AFG Guaranty, duly Guaranty executed by AFGthe Guarantor;
(iv) such certificates of resolutions or other action, incumbency certificates and/or and other certificates of Responsible Officers of each Borrower Loan Party as the Administrative Agent Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Borrower Loan Party is a party;; WCSR 37516286v4
(v) such 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 Loan Party is validly existing, in good standing (if such Loan Party is a corporation) 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 Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, Parties acceptable to Lender addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestin form and substance satisfactory to Lender;
(vii) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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 AFG Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(x) a duly completed Compliance Certificate for as of the period ending December 31, 2005last day of the fiscal quarter of Borrower most recently ended prior to the Closing Date, signed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative AgentLender, the Borrowers shall have Borrower has paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative AgentLender).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial 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 having been metprecedent:
(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 each 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, all the Collateral Documents, and all Guaranties from Parent and Subsidiaries existing on or prior to the Closing Date, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx Xxxxxx Xxxxxx & XxxxxxxXxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may in form and substance reasonably requestsatisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and (C) the current Debt Ratingsis in effect;
(ix) evidence that the Liens in favor of Agent are valid, enforceable, properly perfected in a duly completed Compliance Certificate for the period ending December 31manner acceptable to Agent and prior to all others’ rights and interests, 2005, signed by a Responsible Officer of AFGexcept those Agent consents to in writing;
(x) evidence that the Existing AFG Second Amended and Restated Credit Agreement Agreement, as amended, among the Loan Parties and the Existing GAFRI Credit Agreement have Cisco Systems Capital Corporation has been or concurrently with repaid and cancelled before the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;Date.
(xi) executed Subordination Agreement for any personal property Collateral located at any of the locations listed on Schedule 5.19, an agreement from the owner of the real property and the holder of any such mortgage or deed of trust.
(xii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of Parent most recently ended prior to the Closing Date, after giving pro forma effect to all Loans to be made on the Closing Date, signed by each a Responsible Officer of Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xiixiii) the Audited Financial Statements;
(xiv) three years projected financials (to include an income statement & balance sheet for the fiscal years ending 2006, 2007, and 2008); and
(xv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006Loan Parties must maintain their primary depository relationships with 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative AgentLender’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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent Lender and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement and the Pledge and Security Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) if requested by the Lender, a Note executed by each Borrower in favor of each Lender requesting a Notethe Borrower;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or or other certificates of Responsible Officers of each Borrower Loan Party as the Administrative Agent Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Borrower Loan Party is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Loan Party to be true and correct as of the Closing Date;
(v) such documents and certifications as the Administrative Agent Lender may reasonably require to evidence that each Loan Party is duly organized or formed, formed and that 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;
(vi) a favorable opinion opinions of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Lender may reasonably request;
(vii) a certificate of a Responsible Officer of each the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower any Loan Party and the validity against such Borrower 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 AFG 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; and (C) the current Debt Ratings;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(x) evidence that all insurance required to be maintained pursuant to the Existing AFG Credit Agreement Loan Documents has been obtained and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid is in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednesseffect; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders Lender reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date The Loan Parties shall have been paidtaken all actions necessary to perfect the security interests of the Pledge and Security Agreement in the Collateral, including the delivery to the Lender of instruments and certificates as contemplated thereby, and shall have provided to the Lender evidence satisfactory to the Lender and its legal counsel confirming that the security interests of the Lender in the Collateral pursuant to the Pledge and Security Agreement are first priority security interests, subject only to Permitted Liens, including the filing of any UCC financing statements in the appropriate jurisdictions.
(c) Unless waived by All of the Administrative Agent, existing Indebtedness for borrowed money of the Borrowers Borrower and its Subsidiaries (other than Indebtedness permitted to exist pursuant to Section 7.03) shall be repaid in full and all security interests related thereto shall be terminated on or prior to the Closing Date.
(d) The Borrower shall have paid to the Lender all fees required under the Fee Letter.
(e) The Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative AgentLender).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the L/C Issuer and Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative AgentLender’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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersLender:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by counterparts of all Collateral Documents and each Borrower in favor of each Lender requesting a NoteGuaranty;
(iii) the AFG Guaranty, duly Note executed by AFGBorrower in favor of Lender;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower Loan Party as the Administrative Agent Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Borrower Loan Party is a party;
(v) such 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 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 Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, Parties acceptable to Lender addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Lender may reasonably requestrequest and in form and substance satisfactory to Lender;
(vii) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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 AFG Borrower certifying (A) that the conditions specified in Sections 4.02(a5.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since December 31, 2015, the date of the Audited Financial Statements most recent financial statements of Borrower furnished to Lender, 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;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed evidence that all insurance required to be maintained by a Responsible Officer of AFGSection 7.07 hereof has been obtained and is in effect;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Lender or the Required Lenders reasonably L/C Issuer may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative AgentLender, the Borrowers 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) Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative AgentLender).
(d) The Closing Date Lender and its counsel shall have occurred completed, to its satisfaction, a review of Borrower's abstracts of title, title reports or other title information conducted on or before April 15, 2006. Without limiting the generality behalf of the provisions of Section 9.04, for purposes of determining compliance Borrower with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior respect to the proposed Closing Date specifying its objection theretoMineral Interests.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension on the Closing Date hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each 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 Lendersits legal counsel:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications certificates as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, formed and that Borrower and each Loan Party is Guarantor is, validly existing, existing and in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan PartiesParties acceptable to Agent, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestin form and substance satisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 reasonably be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; , and (C) a calculation of the current Debt Ratingsfinancial covenants set forth in Section 7.12 as of the last day of the fiscal quarter of Borrower ended on or about June 28, 2008;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG Credit Agreement dated as of July 21, 2006, as amended or modified, among Borrower, Bank of America, as agent and a syndicate of lenders (the “Existing GAFRI Credit Agreement have Agreement”) has been or concurrently with the Closing Date are is being terminated amended in form and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates substance satisfactory to which each Borrower has any Indebtednessthe Agent; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15September 30, 20062008. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Loan Agreement (Littelfuse Inc /De)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each 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 Lendersits legal counsel:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, Lead Arranger, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrower and 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 qualificationqualification which are listed on Schedule 4.01, except to the extent that failure to do so could would not reasonably likely be expected to have a Material Adverse Effect;
(viv) a favorable opinion of XxxxxxxWinstead Sechrest & Minick P.C., Xxxxxxxx & Xxxxxxx, counsel to xxxxxxx xx the Loan Xxxx Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 September 29, 2002 that has had or could would likely be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the current Debt RatingsConsolidated Leverage Ratio, the Consolidated Fixed Charge Coverage Ratio and Consolidated Net Worth as of the last day of the fiscal quarter of CEC Entertainment most recently ended prior to the Closing Date;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a duly completed Compliance Certificate true, correct and complete copies of the Audited Financial Statements and the unaudited interim financial statements for CEC Entertainment for the period ending December 31nine months ended September 29, 2005, signed by a Responsible Officer of AFG2002;
(x) evidence that the Existing AFG Credit Agreement and has been or concurrently with the Closing Date is being terminated and, if applicable, all Liens securing obligations under the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednessreleased; and
(xiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer or the Required Lenders reasonably may require, including information regarding litigation, tax, labor, pension liabilities (actual or contingent), debt agreements, insurance, environmental matters, contingent liabilities and management of CEC Entertainment and its Subsidiaries.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15December 3, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto2002.
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 having been metprecedent:
(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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each BorrowerBorrowers;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, Parties acceptable to Agent addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestin form and substance satisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG Borrowers 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 (C) the current Debt Ratingsis in effect;
(ix) a duly completed Compliance Certificate for as of the period ending December 31, 2005last day of the fiscal quarter of Borrowers most recently ended prior to the Closing Date, signed by a Responsible Officer of AFGBorrowers;
(x) evidence that the Existing AFG Credit Agreement copies of UCC, intellectual property and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated other appropriate search reports and of all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednesseffective filings listed therein; and
(xiixi) such other assurances, certificates, documents, consents or opinions as Agent, the Administrative Agent L/C Issuer or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement 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 the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15February 28, 20062009. Without limiting the generality of the provisions of the last sentence of Section 9.049.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial 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 having been metprecedent:
(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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Guaranty and the Licensor Consents, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of XxxxxxxXxxxxx & Xxxxxx, Xxxxxxxx & XxxxxxxLLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required under Section 5.03 in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedsatisfied or waived, 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 current Debt Ratings;Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date; CREDIT AGREEMENT
(ixviii) a duly completed Compliance Certificate for as of the period ending December 31, 2005Closing Date, signed by a Responsible Officer of AFGthe Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(x) evidence that the Existing AFG Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;released.
(xi) executed Subordination The Security Agreements, in each case together with:
(i) UCC searches on all assets and properties of the Borrower and its Subsidiaries which are Guarantors, such searches showing no Liens except (x) Liens securing the Obligations, (y) Liens permitted to exist hereunder and (z) Liens securing the Existing Credit Agreement by each Borrower’s Subsidiaries and Affiliates with respect to which termination statements have been delivered or are being delivered concurrently on the Closing Date, (ii) proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreements, covering the Collateral described in the Security Agreements and (iii) proper termination statements in form appropriate for filing under the Uniform Commercial Code in all jurisdictions to terminate all Financing Statements reflecting liens and security interests securing all Indebtedness of the Borrower and its Subsidiaries other than (x) Indebtedness constituting all or any part of the Obligations hereunder and (y) secured Indebtedness permitted under the terms of this Agreement (but only to the extent such secured Indebtedness is permitted to be secured by the assets evidenced by such Financing Statement),
(B) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreements that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby,
(C) any account control agreements and securities account control agreements necessary in order to have a perfected first and prior lien on all the deposit accounts and securities accounts of each Borrower has any Indebtedness; of the Loan Parties held by Bank of America, in each case on terms and conditions, and pursuant to documentation, acceptable to the Administrative Agent, duly executed by the appropriate parties, and
(xiiD) such evidence that all other assurances, certificates, documents, consents or opinions as action that the Administrative Agent may deem necessary or desirable in order to perfect the Required Lenders reasonably may require.Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters and all UCC-3 termination statements);
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. CREDIT AGREEMENT Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial 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 having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or digital copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & XxxxxxxDLA Piper LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably requestrequest including due formation, authorization, enforceability and no conflict with all provisions of the Organization Documents of the Companies;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG CIM Urban REIT and Borrower certifying (A) that the conditions specified in Sections 4.02(a5.02(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 would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and , (C) the current Debt Ratingsabsence of any action, suit, investigation or proceeding pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or governmental authorities related to Borrower or CIM Urban REIT or that could reasonably be expected to have a Material Adverse Effect, and (D) a calculation of the Maximum Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Companies most recently ended prior to the Closing Date;
(ixviii) a duly completed Unencumbered Property Report and Compliance Certificate for as of the period ending December 31last day of the fiscal quarter of the Companies ended on September 30, 20052011, signed by a Responsible Officer of AFGCIM Urban REIT;
(xix) evidence that the Existing AFG Credit Agreement and Property Information required pursuant to Section 4.02(b) with respect to each of the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any IndebtednessInitial Unencumbered Properties; and
(xiix) such other assurances, certificates, documents, consents or opinions as Administrative Agent, the Administrative Agent L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15February 6, 20062012. Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender and the Letter of Credit Issuer to make its any initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall following items (except those items that are expressly permitted to be originals or telecopies (followed promptly by originals) unless otherwise specifieddelivered after the Closing Date pursuant to the Post-Closing Agreement), each properly executed by a Responsible Officer of each the applicable Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent in its discretion:
i. executed counterparts of this Agreement and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each BorrowerSecurity Instruments;
(ii) a Note . Notes executed by each Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) . such certificates of resolutions or other action, incumbency certificates (including specimen signatures), and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(v) iv. such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or organization and in any other jurisdiction in which 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, including certified copies of such Loan Party’s Organization Documents, agreements among holders of Equity Interests, certificates of good standing and qualification to engage in business in each applicable jurisdiction;
(vi) a v.a favorable opinion of Xxxxxxx, Xxxxxxxx & XxxxxxxXxxxxxxxx Xxxxxx Xxxxxxx LLP, counsel to the Loan Parties, and acceptable local counsel to the Loan Parties, each addressed to the Administrative Agent and each LenderLender and their successors and assigns, as to the matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(vii) 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;
(viii) a certificate signed by a Responsible Officer of AFG 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) the current Debt Ratings;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid 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 the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Synalloy 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 having been metprecedent:
(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 each the signing Loan PartyParty (as applicable), each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Lender, the Borrower and each BorrowerGuarantor;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as Loan Party, in each case, reasonably acceptable to the Administrative Agent may require Agent, evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Borrower Loan Party is a party or is to be a party;
(viv) such customary documents and certifications as certifications, in each case, reasonably acceptable to the Administrative Agent may reasonably require to evidence Agent, evidencing that each Loan Party is duly organized or formed, and that 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;
(viv) a favorable an opinion of Xxxxxxx, Xxxxxxxx Xxxxx & XxxxxxxCase LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(vii) 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;
(viiivi) a certificate signed by a Responsible Officer of AFG the Borrower certifying that (A) that the conditions specified Specified Acquisition Agreement Representations are true and correct in Sections 4.02(aall material respects, (B) the Specified Representations are true and (b) have been satisfiedcorrect in all material respects, and (BC) 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 haveEffective Date Acquisition Agreement, either individually or no Company Material Adverse Effect (as defined in the aggregateEffective Date Acquisition Agreement) has occurred;
(vii) a solvency certificate in form and substance reasonably satisfactory to the Administrative Agent from the chief financial officer, treasurer, vice president or similar financial officer of the Borrower as to the Solvency of the Borrower and its Subsidiaries as of the Effective Date after giving effect to the transactions contemplated hereby;
(viii) a Material Adverse EffectLoan Notice with respect to the Loans to be made on the Effective Date; and (C) the current Debt Ratings;and
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
Financial Statements (x) evidence as defined in the Effective Date Acquisition Agreement); provided that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or and the Required Lenders reasonably may requirehereby acknowledge prior receipt of such Financial Statements in satisfaction of this clause (ix).
(b) Any fees related to this Agreement required to be paid on or before the Closing Date Borrower shall have provided to the Lenders (not later than three (3) Business Days prior to the Effective Date) all documentation and other information about the Loan Parties and the Effective Date Target required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, as has been paid.
(c) Unless waived reasonably requested in writing 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 the Borrowers and the Administrative Agent).
Lenders at least ten (d10) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender Business Days prior to the proposed Closing Date specifying its objection theretoEffective Date, including, if any Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Loan Party.
Appears in 1 contract
Conditions of Initial Credit Extension. The effectiveness of this Agreement and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is are subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each 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, including the amendment, modification, ratification and affirmation of the Guaranty that is a part hereof, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, Parties acceptable to Agent addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestin form and substance satisfactory to Agent;
(viivi) 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 partyDocuments, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of AFG 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) the current Debt Ratings;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(xvii) evidence that immediately prior to the effectiveness of this Agreement, all lenders party to the Existing AFG Credit Agreement (other than Bank of America) have transferred and assigned to Bank of America all of the principal indebtedness owing by Borrower under the Existing Credit Agreement and that all interest, fees and other amounts (other than principal indebtedness) accrued under the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in fullby Borrower;
(xiviii) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednessthe Agent Fee Letter; and
(xiiix) such other assurances, certificates, documents, consents or opinions as Agent, the Administrative Agent L/C Issuer, Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Azz 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 having been metprecedent:
(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 each 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, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note Notes executed by each the Borrower in favor of each Lender requesting a NoteNotes;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, existing and in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & XxxxxxxDechert LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to Lender substantially in the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably requestform set forth in Exhibit H;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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; and (C) a calculation of the current Debt RatingsConsolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(ixviii) a duly completed Compliance Certificate for as of the period ending December 31last day of the fiscal quarter of the Borrower ended on October 1, 20052010, signed by a Responsible Officer of AFGthe Borrower;
(xix) evidence that the Existing AFG Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednessreleased; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial 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 having been metprecedent:
(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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a NoteLender;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party the Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & XxxxxxxRuder Ware, counsel to the Loan Parties, addressed to the Administrative xx xhx Xxministrative Agent and each Lender, as to the corporate 53 authority of the Loan Parties enforceability of the Loan Documents and such other matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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) evidence that each of the credit facilities under the Existing Credit Agreement shall have been (or will be upon the initial borrowings and (Cissuance of Letters of Credit hereunder on the Closing Date and the application of the proceeds thereof) paid in full and fully satisfied and that the current Debt Ratingscommitments under the Existing Credit Agreement shall have been terminated;
(ix) a duly completed Compliance Certificate for receipt by the period ending December 31, 2005, signed by a Responsible Officer Administrative Agent of AFG;
(x) evidence that supplements to the Existing AFG Credit Intercreditor Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any IndebtednessLender not already party thereto; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of Section 9.0410.04, 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved 54 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 having been metprecedent:
(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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Qualified Borrower Guaranty, and the Credit Guaranty executed by each of the Material Subsidiaries determined sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Revolving Note and Term Note executed by each Borrower and any Qualified Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, Parties acceptable to Agent addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestin form and substance satisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; , and (C) the current Debt Ratings;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a duly completed Compliance Certificate for the period ending December 31as of September 30, 20052004, signed by a Responsible Officer of AFGBorrower;
(x) evidence that consolidated pro forma balance sheet of Borrower and its Subsidiaries, related consolidated pro forma statements of income and cash flows of Borrower and its Subsidiaries, and pro forma covenant projections, each covering the Existing AFG Credit period from the date of this Agreement through March 31, 2008, and showing on a quarterly basis that, after giving effect to the Existing GAFRI Credit Agreement have been or concurrently Loans, Borrower will be in pro forma compliance with all of the Closing Date are being terminated terms and all outstanding fees provisions of the covenants in Sections 6.12 and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness7.06; and
(xiixi) such other assurances, certificates, documents, consents or opinions as Agent, the Administrative Agent L/C Issuer, Swing Line Lender or the Required Lenders reasonably may require.
(b) All due diligence with respect to the Borrower shall have been completed and shall have been satisfactory to the Agent and the Lenders in their sole discretion.
(c) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(cd) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(de) The commitments under the Existing Revolving Loan Agreement shall be terminated and all amounts owing thereunder shall be paid in full with proceeds of the initial Credit Extension. Each party hereto that is also a party to the Existing Revolving Loan Agreement hereby waives any requirement under the Existing Revolving Loan Agreement of advance notice for any such termination or payment.
(f) The commitments under the Existing Term Loan Agreement shall be terminated and all amounts owing thereunder shall be paid in full with proceeds of the initial Credit Extension. Each party hereto that is also a party to the Existing Term Loan Agreement hereby waives any requirement under the Existing Term Loan Agreement of advance notice for any such termination or payment.
(g) The Closing Date shall have occurred on or before April 15February 26, 20062005. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial 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 having been metprecedent:
(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 each the signing Loan PartyParty or the Lenders, as applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement, Agreement sufficient in number for distribution to the Administrative Agent, the Canadian Agent, each Lender and each Borrowerthe Parent;
(ii) a Note executed by each Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party or is to become a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that copies of each Loan Party is duly organized or formed, Party’s Organization Documents and that each Loan Party is validly existing, in a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and qualified to engage in business in from each jurisdiction where its such Loan Party’s 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx (x) Xxxxxx & XxxxxxxBird LLP, counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to the such matters concerning AFG and its Subsidiaries the Domestic Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request; (y) Blakes, Xxxxxxx & Xxxxxxx LLP, and local Canadian counsel, counsel to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to such matters concerning the Canadian Loan Parties and the Loan Documents as the Canadian Agent may reasonably request; and (z) Eversheds, counsel to the Foreign Borrower, addressed to the Administrative Agent and each Domestic Lender and to the Canadian Agent and each Canadian Lender, as to such matters concerning the Foreign Borrower and the Loan Documents as the Administrative Agent and the Canadian Agent may reasonably request;
(vii) 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;
(viiivi) a certificate signed by a Responsible Officer of AFG 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 would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and , (C) to the current Debt RatingsSolvency 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;
(ixvii) a duly completed Compliance Certificate payoff letter from the agent for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(x) evidence lenders under the Existing Credit Agreement satisfactory in form and substance to the Administrative Agent evidencing that the Existing AFG 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 GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated released;
(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 and the Loan Parties shall have used commercially reasonable efforts to obtain any Collateral Access Agreements reasonably requested by the Agents (failing which the Administrative Agent may establish Reserves against the Borrowing Base);
(ix) all outstanding fees other Loan Documents, each duly executed by the applicable Loan Parties;
(x) 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 interest related thereto Liens for which termination statements and releases, satisfactions 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 paid in fullmade;
(xi) executed Subordination Agreement (A) all documents and instruments, including Uniform Commercial Code and PPSA 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 so filed, registered or recorded to the satisfaction of the Agents, (B) the Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.12 hereof shall have been obtained, and (C) control agreements with respect to the Loan Parties’ securities and investment accounts have been obtained;
(xii) satisfactory evidence of insurance to be maintained by the Loan Parties with respect to the Collateral, in each Borrower’s Subsidiaries case reasonably satisfactory to the Agents and Affiliates to which each Borrower has any Indebtednesscustomary for transactions of this type; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders Agents reasonably may require.
(b) Any 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, Combined Availability shall be not less than $200,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate with respect to the Domestic Borrowing Base and the Canadian Borrowing Base dated the Closing Date, relating to the month ended on September 30, 2010, and executed by a Responsible Officer of the Parent and by the Canadian Borrower.
(d) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it and the Lenders fairly present the business and financial condition of the Loan Parties and that there has not been, nor has an event or condition occurred that would reasonably be expected, either individually or in the aggregate, to have, a Material Adverse Effect since June 30, 2010.
(e) The Administrative Agent shall have received and be satisfied with financial projections for the Parent and its Subsidiaries (x) for the consecutive monthly periods following the Closing Date ending September 30, 2011 and (y) on an annual basis, for each Fiscal Year thereafter through fiscal year 2014, including, in each case, a consolidated income statement, balance sheet, statement of cash flow and Availability model (which Availability model shall be prepared on a four week-accounting period basis through July 2011).
(f) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(g) All governmental consents and approvals, and all third party consents required for the Loan Parties to consummate the financing, shall have been obtained by the Loan Parties other than those consents and approvals that, if not obtained, would not be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect.
(h) The Lenders shall have completed a due diligence investigation of the Borrowers and their Subsidiaries in scope, and with results, satisfactory to the Lenders (including, without limitation a satisfactory commercial finance examination and inventory appraisal) and shall have been given such access to the management, records, books of account, contracts and properties of the Borrowers and their Subsidiaries and shall have received such financial, business and other information regarding each of the foregoing persons and businesses as they shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, collective bargaining agreements and other arrangements with employees, the annual (or other audited) financial statements of Xxxxx Investment Holdings LLC and its Subsidiaries for the most recently ended Fiscal Year and interim financial statements of Xxxxx Investment Holdings LLC and its Subsidiaries dated the end of the most recent Fiscal Quarter for which financial statements are available. All of the Information 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 Agents or the Lenders regarding Xxxxx Investment Holdings LLC or its Subsidiaries or the transactions contemplated hereby after September 23, 2010 that (A) either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect or (B) purports to adversely affect the transactions contemplated hereby, and nothing shall have come to the attention of the Lenders to lead them to believe that any information furnished to the Administrative Agent prior to the Closing Date was or has become misleading, incorrect or incomplete in any material respect or (y) the transactions contemplated hereby will have a Material Adverse Effect.
(i) The Administrative Agent and the other parties to the Intercreditor Agreement shall have entered into an agreement ratifying and confirming the Intercreditor Agreement.
(j) The consummation of the transactions contemplated hereby shall not violate any Law or any Organization Document.
(k) All fees related to this Agreement required to be paid to the Agents or the Arranger on or before the Closing Date shall have been paidpaid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(cl) Unless waived by the Administrative Agent, the The Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by and the Administrative Agent) Canadian 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 Borrowers and the Administrative AgentAgents).
(dm) The Closing Date Administrative Agent shall have occurred on or before April 15received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, 2006including without limitation the USA PATRIOT Act. 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 Consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented 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 having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies pdf copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each 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 AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note Notes executed by each the Borrower in favor of each Lender requesting a NoteNotes;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrower and the Trust is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, 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 AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; Effect and (C) a calculation of the current Debt RatingsConsolidated Leverage Ratio as of the last day of the fiscal quarter for which financial statements have been publicly filed prior to the Closing Date;
(ixviii) a duly completed Compliance Certificate for as of the period ending December 31last day of the fiscal quarter of the Borrower ended on September 30, 20052014, signed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xiiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may reasonably require.
(b) Any fees related to this Agreement required to be paid to the Administrative Agent or any Lender in connection with this Agreement or the Fee Letter on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date that is three 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit and Term Loan Agreement (Dividend Capital Diversified Property Fund Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial any Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each the signing Loan PartyParty or the Lenders, as applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement, Agreement sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party or is to become a party;
(viv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxx Xxxxxxxx & XxxxxxxLLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Agent may reasonably request;
(vii) 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;
(viiivi) a certificate signed by a Responsible Officer of AFG 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 April 2, 2020 that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and , (C) to the current Debt RatingsSolvency 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, subject to Section 6.21, 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) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFGFacility Guaranty;
(x) evidence that all other Loan Documents, each duly executed by the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in fullapplicable Loan Parties;
(xi) executed Subordination Agreement 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;
(xii) all documents and instruments, including Uniform Commercial Code financing statements, required by each Borrower’s Subsidiaries law or reasonably requested by the Agent to be filed, registered or recorded to create or perfect the first priority Liens (subject to Permitted Encumbrances that have priority by operation of Law) intended to be created under the Loan Documents and Affiliates all such documents and instruments shall have been so filed, registered or recorded to which each Borrower has any Indebtednessthe satisfaction of the Agent; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any After giving effect to (i) any Loans outstanding or made hereunder on the Closing Date, (ii) any charges to the Loan Account made on the Closing Date and (iii) all Letters of Credit issued or outstanding on the Closing Date, Availability shall be not less than $80,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the Fiscal Month ended on April 4, 2020, 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 April 2, 2020.
(e) 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 current 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.
(f) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(g) There shall not have occurred any default of any Material Contract of any Loan Party.
(h) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(i) All fees related to this Agreement and expenses required to be paid to the Agent or the Arrangers on or before the Closing Date shall have been paidpaid in full, all fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full, and all fees and expenses required to be paid to the lenders under the Existing Credit Agreement shall have been paid in full.
(cj) Unless waived by the Administrative Agent, the Borrowers 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 Closing Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(dk) The Closing Date 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 with respect to any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Loan Party, which such Beneficial Ownership Certification shall be complete and accurate in all respects.
(l) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred on or before April 15, 2006prior 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 Consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented 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 (Five Below, 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 having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tiff” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower as Loan Party 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 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 Borrower Loan Party is a party or is to be a party;
(viv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion opinions of Xxxxxxx(i) Skadden, Xxxxxxxx Arps, Slate, Xxxxxxx & XxxxxxxXxxx, LLP, counsel to the Loan Parties, (ii) general corporate counsel to the Loan Parties, and (iii) local counsel to the Loan Parties in Florida, in each case addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(vii) 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;
(viiivi) a certificate signed by a Responsible Officer of AFG 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; and , (C) to the current Debt RatingsSolvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby and (D) that 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 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;
(ixvii) a duly completed Compliance Certificate for evidence that all insurance required to be maintained pursuant to the period ending December 31, 2005, signed by a Responsible Officer Loan Documents and all endorsements in favor of AFGthe Agents required under the Loan Documents have been obtained and are in effect;
(xviii) evidence a payoff letter from Bank of America, N.A., as agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Administrative Agent evidencing that the Existing AFG 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 GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated released;
(ix) the Security Documents and other Loan Documents set forth on Schedule 4.01 hereto and certificates evidencing any stock being pledged thereunder (for clarity, other than Excluded Property as therein defined), together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) (A) appraisals (based on net liquidation value) by a third party appraiser reasonably acceptable to the Collateral Agent of all outstanding fees Inventory of the Loan Parties, the results of which are reasonably satisfactory to the Collateral Agent and interest related thereto have been paid in full(B) a written report regarding the results of a customary commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Collateral Agent;
(xi) executed Subordination Agreement 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) duly authorized Uniform Commercial Code financing statements, required by each Borrower’s Subsidiaries law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create or perfect the first priority Liens to the extent intended to be created under the Loan Documents and Affiliates all such documents and instruments shall have been concurrently submitted for filing registering or recordation to which each Borrower has any Indebtednessthe satisfaction of the Collateral Agent, and (B) the Credit Card Notifications and Blocked Account Agreements required as of the Closing Date pursuant to Section 6.13 hereof;
(xiii) evidence that all other actions that the Collateral Agent may deem necessary in order to create valid Liens on the property described in the Mortgages have been taken; and
(xiixiv) without duplication of other requirements of this Section 4.01, such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may requireare described in Schedule 4.01 hereto.
(b) Any After giving effect to (i) the first funding under the Loans, (ii) the payment of all fees and other amounts due under the Loan Documents on the Closing Date, and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $100,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on January 31, 2009, and executed by a Responsible Officer of the Borrower.
(d) The Administrative Agent shall have received the unaudited consolidated balance sheet of the Borrower and its Subsidiaries for the Fiscal Year ending January 31, 2009, and the related consolidated statements of income or operations and Shareholders’ Equity for such Fiscal Year, in form and substance reasonably satisfactory to this Agreement the Administrative Agent.
(e) No event shall have occurred after November 1, 2008 that could reasonably be expected to have a Material Adverse Effect.
(f) The Administrative Agent shall have received and be satisfied with (i) a detailed forecast for Fiscal Year 2009, which shall include a balance sheet, consolidated statements of income or operations and statement of cash flow on an annual basis, 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 Administrative 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) The consummation of the transactions contemplated hereby shall not violate any Applicable Law or any Organization Document in any material respect.
(i) All fees required to be paid by the Loan Parties to the Agents or the Arranger on or before the Closing Date shall have been paidpaid in full, and all fees required to be paid by the Loan Parties to the Lenders on or before the Closing Date shall have been paid in full.
(cj) Unless waived by the Administrative Agent, the Borrowers The Borrower shall have paid all reasonable and documented fees, charges and out-of-pocket 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 reasonable and documented fees, charges and out-of-pocket disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(dk) The Closing Date Administrative Agent 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 Act.
(l) No changes in governmental regulations or policies materially affecting any Loan Party or any Credit Party with respect to the transactions contemplated hereby shall have occurred on or before April 15, 2006prior 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 Consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented 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 (Foot Locker 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 having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies, or telecopies documents transmitted by electronic mail (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each 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, Agreement sufficient in number for distribution to the Administrative Agent, each Lender and each the Lead Borrower;
(ii) a Note executed by each Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party or is to be a party;
(viv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & XxxxxxxLxxxxxxxxx Xxxxxxx PC, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(vii) 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;
(viiivi) a certificate signed by a Responsible Officer of AFG the Lead 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 reasonably be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and , (C) to the current Debt RatingsSolvency 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;
(ixvii) a duly completed Compliance Certificate for evidence that all insurance required to be maintained pursuant to the period ending December 31, 2005, signed by a Responsible Officer Loan Documents and all endorsements in favor of AFGthe Agents required under the Loan Documents have been obtained and are in effect;
(xviii) evidence a payoff letter from Israel Discount Bank of New York, as lender under the Existing Credit Agreement satisfactory in form and substance to the Administrative Agent evidencing that the Existing AFG 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 GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated 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 outstanding fees and interest related thereto have been paid in fullother Loan Documents, each duly executed by the applicable Loan Parties;
(xi) executed Subordination Agreement (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, the results of which shall be satisfactory to the Collateral Agent;
(xii) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each Borrower’s Subsidiaries 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 Affiliates Liens for which termination statements and releases, satisfactions and discharges of any Mortgages, and releases or subordination agreements satisfactory to which 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 Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, and (C) control agreements with respect to the Loan Parties’ securities and investment accounts;
(xiv) 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;
(xv) an appraisal of each Borrower has any Indebtednessof 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; and
(xiixvi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders Agents reasonably may require.
(b) Any After giving effect to (i) the first funding under the Committed Loans and (ii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $20,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on August 1, 2009, and executed by a Responsible Officer of the Lead Borrower, which Borrowing Base Certificate shall be acceptable to the Administrative Agent in all respects.
(d) 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 not occurred since February 28, 2009 (i) any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect or (ii) any action, suit, investigation or proceeding pending or, to the knowledge of the Borrowers, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.
(e) The Administrative Agent shall be reasonably satisfied that the Real Estate Eligibility Conditions have been satisfied.
(f) The Administrative Agent shall have received and be satisfied with (i) a detailed forecast (x) on a monthly basis for the twelve-month period following the Closing Date and (y) on an annual basis, for each Fiscal Year thereafter through the Maturity Date, including, in each case, 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 (ii) such other information (financial or otherwise) reasonably requested by the Administrative Agent.
(g) All of the information (other than any projections delivered to the Administrative 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 Administrative Agent regarding the Lead Borrower or its Subsidiaries or the transactions contemplated hereby that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. All Projections prepared by the Lead Borrower or at its direction and delivered to the Administrative Agent will represent, at the time of delivery to the Administrative Agent, the Lead Borrower’s good-faith estimate of the future financial performance of the Lead Borrower and its Subsidiaries and will be based upon assumptions which are believed by the Lead Borrower to be reasonable in light of the past performance of the Lead Borrower and its Subsidiaries and then current business conditions.
(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 Law or any Organization Document.
(j) All fees related to this Agreement required to be paid to the Agents on or before the Closing Date shall have been paidpaid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(ck) Unless waived by the Administrative Agent, the 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 the Borrowers and the Administrative Agent).
(dl) The Closing Date Administrative Agent 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 on or before April 15, 2006prior 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 Consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented 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 (Syms Corp)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(aA) The Administrative Agent’s Lender'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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent Lender and each of the Lendersits legal counsel:
(iI) executed counterparts of this Agreement, all Collateral Documents, the Guaranty, and each other Loan Document, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(iiII) a Revolving Credit Note executed by each Borrower in favor of each Lender requesting a NoteLender;
(iiiIII) the AFG Guaranty, duly a Term Loan Note executed by AFGBorrower in favor of Lender;
(ivIV) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower Loan Party as the Administrative Agent Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Borrower Loan Party is a party;
(vV) such documents and certifications certificates as the Administrative Agent Lender may reasonably require to evidence that each Loan Party is duly organized or formed, formed and that Borrower and each Loan Party 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;
(viVI) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan PartiesParties acceptable to Lender, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries and the Loan Parties, the Loan Documents as and the Required Lenders may reasonably requestrights of Lender in the Collateral and the priority of Liens granted to Lender, in form and substance satisfactory to Lender and its counsel;
(viiVII) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiiVIII) a certificate signed by a Responsible Officer of AFG Borrower certifying (A) that the conditions specified in Sections 4.02(a4.2(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2002 that has had or could reasonably be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; and , (C) there has been no material change in the current Debt Ratingsinformation delivered to Lender regarding Borrower or any other Loan Party, and (D) a calculation of the financial covenants set forth in Section 6.12(b) as of the last day of the fiscal quarter of Borrower most recently ended prior to the Closing Date, which calculation will show that there is no Default in any financial covenant required hereunder;
(ixIX) a duly completed Compliance Certificate for evidence that all insurance required to be maintained pursuant to the period ending December 31, 2005, signed by a Responsible Officer of AFGLoan Documents has been obtained and is in effect;
(xX) evidence that the Existing AFG Credit Agreement dated as of August 7, 1998 among Borrower, Fleet National Bank, as Lender and a syndicate of other lenders named therein (the "Existing Credit Agreement") has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in fullreleased;
(xiXI) executed Subordination a copy of Borrower's Proxy Statement pursuant to Section 14(a) of the Securities Act of 1933, as amended, detailing the Lightyear Placement, and copies of the Securities Purchase Agreement by each Borrower’s Subsidiaries between Borrower and Affiliates Lightyear (to which each include the Disclosure Letter attached thereto), the Designations of Preferences, Limitations and Relative Rights of Series A Preferred Stock of Private Business, Inc. to be issued to Lightyear, the Warrant Agreement between Borrower has any Indebtedness; andand Lightyear, and the Securityholders Agreement between Borrower and Lightyear;
(xiiXII) a certificate of a Responsible Officer of Borrower to the effect that there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of Borrower, after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any government authority, against Borrower or any of its Subsidiaries or against Lightyear that (A) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (B) purport to affect or pertain to the Lightyear Placement or any of the transactions contemplated thereby, or (C) could otherwise reasonably be expected to have a Material Adverse Affect;
(XIII) a certificate of a Responsible Officer of Borrower to the affect that the Lightyear Placement has been or concurrently with the Closing Date is closing and that such Responsible Officer has no reason to believe, after due and diligent investigation, that the Lightyear Placement will not be effective on and as of the Closing Date;
(XIV) such other assurances, certificates, documents, consents consents, evidence of perfection of all Liens securing the Obligations or opinions as the Administrative Agent or the Required Lenders Lender reasonably may require.
(bB) Lender shall have received and reviewed, and Lender's counsel shall have reviewed, information regarding Borrower's and each other Loan Party's litigation, tax, accounting, labor, insurance, pension liabilities (actual and contingent), real estate leases, material contracts, debt and credit agreements, property ownership, environmental matters, contingent liabilities and management, with results satisfactory to Lender and its counsel.
(C) Lender shall have approved in all material respects the Lightyear Placement, to include the Designation of Preferences of the Series A Preferred Stock to be issued to Lightyear.
(D) Lender shall have completed its due diligence of acceptable vendor and background information.
(E) All operating accounts and similar relationships will have been moved to Lender, and all lockbox services shall have been moved to Lender (other than lockboxes controlled by third parties and only in those locations in which Lender is able to provide the service) or Borrower shall have committed to move all such relationships to Lender;
(F) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(cG) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative AgentLender).
(dH) Lender shall have received satisfactory evidence that, upon the release of the Liens granted to Fleet National Bank, as agent, pursuant to the existing Credit Agreement, and upon the filing of UCC financing statements and the Intellectual Property Security Agreement and Assignment, Lender shall have a perfected security interest in all Collateral and that the security interest and Liens in favor of Lender are valid, enforceable, and prior to all others' rights and interests except those to which Lender consents in writing.
(I) There shall not have occurred an event which has a Material Adverse Effect, nor shall there have occurred a material adverse change since December 31, 2002, in the business, assets, liabilities (actual or contingent), operations, financial condition or prospects of Borrower and its Subsidiaries, taken as a whole, or in the facts and information regarding Borrower and its Subsidiaries as represented to Lender.
(J) The Closing Date shall have occurred on or before April 15January 31, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto2004.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension Loan hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each Loan Partythe 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 reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, Agreement sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each 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 the Borrower is a party;
(viv) 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 each Loan Party the Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably request;
(viiv) a certificate of a Responsible Officer of each the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such the Borrower and the validity against such the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or or, (B) stating that no such consents, licenses or approvals are so required;
(viiivi) a certificate signed by a Responsible Officer of AFG the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) this Section 4.01 have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(ixvii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(viii) a duly completed Compliance Solvency Certificate for the period ending December 31, 2005, signed executed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xiiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid 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 the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Ansys Inc)
Conditions of Initial Credit Extension. The obligation of each Lender and the Letter of Credit Issuer to make its any initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall following items (except those items that are expressly permitted to be originals or telecopies (followed promptly by originals) unless otherwise specifieddelivered after the Closing Date pursuant to the Post-Closing Agreement), each properly executed by a Responsible Officer of each the applicable Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersin its discretion:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Agreement and each Borrowerof the Security Instruments;
(ii) a Note Notes executed by each Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates (including specimen signatures), and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or organization and in any other jurisdiction in which 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, including certified copies of such Loan Party’s Organization Documents, agreements among holders of Equity Interests, certificates of good standing and qualification to engage in business in each applicable jurisdiction;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & XxxxxxxXxxxxxxxx Xxxxxx Xxxxxxx LLP, counsel to the Loan Parties, and acceptable local counsel to the Loan Parties, each addressed to the Administrative Agent and each LenderLender and their successors and assigns, as to the matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(viivi) a certificate certificates of a Responsible Officer Officers of each the Borrower Agent or the applicable Loan Parties either (A) attaching copies of identifying all consents, licenses and approvals required in connection with the execution, delivery and performance by such each Borrower and the validity against each such Borrower Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, and attaching true and correct copies thereof or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of AFG the Borrower Agent certifying (A) that the conditions specified in Sections 4.02(a5.02(a) and (b5.02(b) have been satisfied, satisfied and (B) that there has been no event or circumstance since as to the date matters described in Section 5.01(d) and 5.01(j);
(viii) (A) audited financial statements of the Audited Financial Statements that has had or could be reasonably expected to haveConsolidated Group for each of the three (3) fiscal years immediately preceding the Closing Date, either individually or in (B) unaudited interim financial statements for the aggregateConsolidated Group as of November 30, a Material Adverse Effect; 2020, and (C) financial projections of the current Debt RatingsConsolidated Group for the next three (3) fiscal years;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, certificate signed by the chief financial officer or, chief accounting officer of the Borrower Agent certifying that, after giving effect to the entering into of the Loan Documents and the consummation of all of the Transactions, (A) each Borrower is Solvent and (B) the Loan Parties, taken as a Responsible Officer of AFGwhole, are Solvent;
(x) evidence that all insurance required to be maintained pursuant to the Existing AFG Credit Agreement Loan Documents has been obtained and is in effect (including, without limitation, the Existing GAFRI Credit Agreement have been or concurrently with related insurance policy endorsements in favor of the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in fullAdministrative Agent);
(xi) an initial Borrowing Base Certificate;
(xii) initial written notice of Borrowing;
(xiii) 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 (or in and to such other Collateral as the Administrative Agent may require;
(xiv) Uniform Commercial Code search results showing only those Liens as are acceptable to the Administrative Agent and Lenders;
(xv) evidence of the payment in full and cancellation of the Existing Credit Facility, including terminations of Uniform Commercial Code financing statements filed in connection with the Existing Credit Agreement and other evidence of lien releases and other related matters on terms acceptable to the Administrative Agent;
(xvi) evidence satisfactory to the Administrative Agent of the consummation (in compliance with all applicable laws and regulations, with the receipt of all material governmental, shareholder and third party consents and approvals relating thereto) of the Transactions;
(xvii) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednesscounterparts of the Post-Closing Agreement; and
(xiixviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the Letter of Credit Issuer, the Swing Line Lender or the Required Lenders may reasonably may require, including, without limitation, all documents on the closing checklist last delivered by Administrative Agent to counsel for the Loan Parties.
(b) Any fees related to this Agreement 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 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 reasonable fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(d) The Administrative Agent shall be satisfied, in its reasonable discretion, that after giving effect to (i) the initial Credit Extension hereunder, (ii) consummation of the Transactions and payment of all fees and expenses in connection therewith and (iii) any payables stretched beyond their customary historical levels, Availability shall be at least $15,000,000.
(e) On the Closing Date Date, after giving effect to the Transaction, the capital structure, corporate structure, and management of the Loan Parties and their Subsidiaries is satisfactory to each of the Lenders, in its discretion.
(f) (i) at least five (5) days prior to the Closing Date, to the extent a Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and requested by any Lender, each such requesting Lender(s) shall have received a Beneficial Ownership Certification in relation to such Borrower, in form and substance reasonably satisfactory to each such requesting Lender and (ii) each of the Lenders shall have received all requested disclosures and information related to “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
(g) The Administrative Agent shall have completed all due diligence with respect to the Loan Parties, including a review of historical and projected financial statements and the Consolidated Group’s financial model, insurance review, management background checks and other confirmatory third party due diligence (including, without limitation, a collateral field audit and an inventory appraisal), in each case, as applicable, conducted by third parties acceptable to the Administrative Agent in its discretion, and the results of which shall be satisfactory to the Administrative Agent in its discretion.
(h) The Administrative Agent shall be satisfied, in its discretion, with the resolution of all legal, tax and regulatory matters relating to this Agreement and the Transactions.
(i) No event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect, shall have occurred since the date of the most recent audited financial statements referenced in Section 5.01(a)(viii)(A) (and, in addition, since the date of the unaudited financial statements referenced in Section 5.01(a)(viii)(B).
(j) The representations and warranties of the Loan Parties which are contained in Article VI or any other Loan Document, or which are contained in any document furnished at any time prior to or on or before April 15the Closing Date, 2006shall be true and correct in all respects on and as of the Closing Date. Without limiting the generality of the provisions of Section 9.0410.04, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or either copies transmitted by electronic transmission or telecopies (followed followed, in each case, promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) completed lien searches, listing all effective financing statements filed in the AFG Guarantyjurisdictions that the Administrative Agent may deem necessary or reasonably desirable in order to perfect the liens and security interests created under the Security Documents covering the Collateral described in the Security Documents that name any Loan Party or any Subsidiary of any Loan Party as debtor, duly executed by AFGtogether with copies of such other financing statements, which liens shall be listed on Schedule 4.01;
(iv) such certificates of resolutions or other action, an incumbency certificates and/or other certificates of certificate executed by the Responsible Officers Officer(s) of each Borrower as the Administrative Agent may require Loan Party 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 each Loan Documents Document to which such Borrower Loan Party is a party;
(v) copies, certified by the Secretary or Assistant Secretary (or other appropriate Responsible Officer) of the applicable Loan Party, of all resolutions and other appropriate authorizing actions taken or to be taken by or on behalf of each Loan Party authorizing and approving the execution, delivery and performance of all Loan Documents to which such documents Loan Party is a party, which resolutions or authorizing actions have not been revoked, modified, amended or rescinded and certifications are in full force and effect as of the Closing Date;
(vi) such Organizational Documents, certified by the Secretary or Assistant Secretary (or other appropriate Responsible Officer) of the applicable Loan Party, and/or certificates of good standing or similar certificates or instruments as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party the Borrower is validly existing, in good standing and (if applicable) 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;
(vivii) a favorable legal opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx(A) Xxxxx Xxxxxx LLP, counsel to the Loan Parties, and (B) General Counsel of CDII, each addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties (or any of them) and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(viiviii) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all material consents, licenses and approvals required to be obtained by any Loan Party in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiiix) a copy of the Pemex Contract, together with a certificate of a Responsible Officer of each Loan Party certifying such document as being a true, correct, and complete copy thereof;
(x) a certificate signed by a Responsible Officer of AFG the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied.
(b) There shall not have occurred since December 31, and (B) that there has been no 2012 any event or circumstance since the date of the Audited Financial Statements condition that has had or could be reasonably expected to haveexpected, either individually or in the aggregate, to have a Material Adverse Effect; and (C) the current Debt Ratings;
(ixc) The Administrative Agent shall have received certification as to the financial condition and Solvency of the Borrower and its Subsidiaries from the chief financial officer of the Borrower after giving effect to the consummation of the Transaction and the incurrence of indebtedness related thereto;
(d) There shall be no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened against the Borrower in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a duly completed Compliance Certificate Material Adverse Effect;
(e) The Administrative Agent shall be satisfied that all Loans made by the Lenders to the Borrower shall be in full compliance with the Federal Reserve's margin regulations;
(f) The Administrative Agent shall have received (a) the Borrower's unqualified audited consolidated financial statements for the period year ending 2012, (b) forecasts of consolidated balance sheets, income statements and cash flow statements of the Borrower and its Subsidiaries for each of the Borrower's fiscal quarters ending June 30, 2013, September 30, 2013 and December 31, 20052013, signed in each case, prepared by a Responsible Officer management of AFGthe Borrower and in form and substance substantially similar to those delivered to the Senior Lenders and (c) budgets and forecasts of consolidated balance sheets, income statements and cash flow statements of the Borrower and its Subsidiaries for each of the Borrower's fiscal years 2014 through and including 2015, in each case, prepared by management of the Borrower and in form and substance substantially similar to those delivered to the Senior Lenders;
(xg) evidence that The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) Administrative Agent, such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.require and timely request;
(bh) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless paid unless the receipt thereof on or before the Closing Date is or has been waived by the Administrative Agent, the Borrowers recipient thereof; and
(i) 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 in a reasonably detailed statement and received by the Borrower prior to or at a reasonable time on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of Section 9.048.04, 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each 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 Lendersits legal counsel:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications certificates as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, formed and that Borrower and each Loan Party is Guarantor is, validly existing, existing and in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan PartiesParties acceptable to Agent, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestin form and substance satisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 reasonably be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; , and (C) a calculation of the current Debt Ratingsfinancial covenants set forth in Section 7.12 as of the last day of the fiscal quarter of Borrower most recently ended prior to the Closing Date (it being understood that the Consolidated Leverage Ratio and the Consolidated Fixed Charge Coverage Ratio shall be determined as set forth in Section 7.12, and in the case of the Consolidated Leverage Ratio. on a pro forma basis as if the Teccor Acquisition shall have occurred at the beginning of the four fiscal quarters most recently ended prior to the Closing Date);
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG Second Amended and Restated Credit Agreement dated as of September 1, 1998, as amended or modified, among Borrower, BankOne, N.A. (f//k/a The First National Bank of Chicago), as agent and a syndicate of lenders (the "Existing GAFRI Credit Agreement have Agreement") has been or concurrently with the Closing Date are is being terminated terminated, and that all outstanding fees loans and interest related thereto obligations thereunder have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15August 29, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto2003.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party or is to be a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrower and the Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of XxxxxxxWeil, Xxxxxxxx Gotshal & XxxxxxxXxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G-1 and such other matters concerning AFG the Loan Parties and its Subsidiaries the Loan Documents as the Required Lenders may reasonably request;
(vi) a favorable opinion of Kansas local counsel to the Loan Parties addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G-2 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 Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Transaction and the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower Loan Party of the Loan Documents to which it is a party, including but not limited to, (i) final approval of the Separation by the board of Cardinal Health, (ii) a private letter ruling from the Internal Revenue Service substantially to the effect that the Contribution and the Distribution will qualify as a transaction that is generally tax-free for U.S. federal income tax purposes under Sections 355 and 368(a)(1)(D) of Code, (iii) opinions from counsel to Cardinal Health to the effect that the Contribution and the Distribution will qualify as a transaction that is described in Sections 355 and 368(a)(1)(D) of the Code, (iv) the SEC declaring the Form 10 effective, (v) consents to assignments or other satisfactory evidence of continuity, without disruption or the incurring of costs materially in excess of those described in the Form 10, of material existing operations and contractual arrangements and commitments of the assets transferred to the Borrower under the Contribution and (vi) releases of any Liens on the assets transferred to the Borrower under the Contribution attributable to Cardinal Health or its Lien creditors other than Liens permitted hereunder, 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 AFG the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that that, except as set forth in the Form 10 and as disclosed on Schedule 5.06, there has been no event or circumstance since the date of the Audited Financial Statements June 30, 2008 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; Effect and (C) the current Debt Ratings;
(ixa) a duly completed Compliance Certificate for certificate attesting to the period ending December 31Solvency of the Borrower and of the Borrower and its Subsidiaries, 2005taken as a whole, signed before and after giving effect to the Transaction, from the chief financial officer of the Borrower and (b) a copy of the Solvency opinion from Duff & Xxxxxx addressed to the Board of Directors of the Borrower with respect to the Borrower and its Subsidiaries, taken as a whole;
(x) copies certified by a Responsible Officer of AFG;
(x) evidence each Related Document that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently is not filed with the Closing Date are being terminated SEC prior to the date hereof, duly executed by the parties thereto, together with all agreements, instruments and all outstanding fees and interest related thereto have been paid other documents delivered in fullconnection therewith, as the Administrative Agent may reasonably request;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or any Lender as requested through the Required Lenders Administrative Agent, may reasonably may require.
(bi) Any All fees related to this Agreement required to be paid to the Administrative Agent and the Joint 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.
(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 the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial 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 having been metprecedent:
(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 each Loan Partythe 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, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each 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 the Borrower is a party;
(viv) 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 each Loan Party the Borrower is validly existing, in good standing and qualified to engage in business in its state of organization and in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxxxx, Xxxxxx Xxxx & Xxxxxxxx & XxxxxxxLLP, counsel to the Loan PartiesBorrower, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning AFG and its Subsidiaries the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such the Borrower and the validity against such the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of AFG 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; (C) that the pro forma financial statements delivered pursuant to Section 4.01(a)(ix) were prepared in good faith based upon reasonable assumptions and (CD) the current Debt Ratings;
(ixviii) a duly completed Compliance Certificate for the period ending December 31as of June 30, 2005, 2004 signed by a Responsible Officer of AFGthe Borrower;
(ix) pro forma financial statements and covenant compliance projections in form and substance reasonably acceptable to the Administrative Agent;
(x) evidence that the Existing AFG Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing GAFRI Credit Agreement Agreement, if any, have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednessreleased; and
(xiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15completion of all due diligence with respect to the Borrower and its Subsidiaries, 2006such due diligence to be satisfactory to the Administrative Agent, the Arrangers and the Lenders. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Health Care Property Investors Inc)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies electronically (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each BorrowerLoan Party;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Notethe Initial Notes;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, Parties reasonably acceptable to Agent addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may in form and substance reasonably requestsatisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and (C) the current Debt Ratingsis in effect;
(ix) evidence of that the $175,000,000 term loan facility from KeyBank and certain other lenders to Borrower has been paid in full and terminated;
(x) a duly completed Compliance Certificate for as of the period ending December 31, 2005last day of the fiscal quarter of Borrower most recently ended at least 45 days prior to the Closing Date, signed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of the last sentence of Section 9.049.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial 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 having been metprecedent:
(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 each, if applicable, properly executed by a Responsible Officer of each 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 AgreementAgreement and the other Loan Documents, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrowerthe Company;
(ii) a Note Notes executed by each Borrower the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx Ropes & XxxxxxxXxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to the matters concerning AFG Administrative Agent and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably requesteach Lender;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all material consents, licenses and approvals required in connection with the Transactions and the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;the
(viiivii) a certificate signed by a Responsible Officer of AFG the Company (x) certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, provided that the only representations and warranties made with respect to True North and its Subsidiaries the accuracy of which shall be a condition to the Initial Credit Extensions on the Closing Date shall be the Specified Representations and the Merger Agreement Representations, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that that, as to the Company and its Subsidiaries (other than True North and its Subsidiaries), has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; , and (C) that there has been no event or circumstance since May 22, 2017 that, as to True North and its Subsidiaries, has had or could reasonably be expected to have, either individually or in the current Debt Ratingsaggregate, a True North Material Adverse Effect and (y) attaching and certifying as to true, correct and complete executed copies of the Related Documents;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Company ended on March 31, 2017, calculating the financial covenants set forth herein on a Pro Forma Basis after giving effect to the Transactions, signed by a Responsible Officer of the Company;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFGexecuted Solvency Certificate;
(x) evidence that the Existing AFG Credit Agreement all insurance required to be maintained pursuant to Section 6.07 has been obtained and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid is in full;effect; and
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or shall have received a Committed Loan Notice with respect to any Loans to be made on the Required Lenders reasonably may requireClosing Date.
(b) Prior to or substantially concurrently with the initial Credit Extensions on the Closing Date, the Merger shall be consummated in accordance with the terms of the Merger Agreement and the other Related Documents (without giving effect to any amendments, supplements, waivers or other modifications thereto since May 22, 2017 that are materially adverse to the Administrative Agent, the Arranger or the Lenders (in their capacities as such) without the consent of the Arranger, such consent not to be unreasonably withheld or delayed).
(i) There shall have been no event or circumstance since the date of the Audited Financial Statements that, as to the Company and its Subsidiaries (other than True North and its Subsidiaries), has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (ii) there shall have been no event or circumstance since May 22, 2017 that, as to True North and its Subsidiaries, has had or could reasonably be expected to have, either individually or in the aggregate, a True North Material Adverse Effect.
(d) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(ce) Unless waived by the Administrative Agent, the Borrowers 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 at least two (2) Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Company and the Administrative Agent).
(df) The Closing Date Lenders shall have occurred completed U.S. Department of Treasury Office of Foreign Assets Control, United States Foreign Corrupt Practices Act of 1977 and “know your customer” due diligence in scope, and with results, reasonably satisfactory to the Lenders. The Loan Parties shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent and the Lenders in order to comply with applicable law, including without limitation, the Act. The Loan Parties shall have provided to the Administrative Agent and the Lenders, at least three (3) Business Days prior to the Closing Date, the documentation and other information requested by the Administrative Agent and the Lenders in order to comply with applicable Law, including without limitation, the Act, in each case, requested by the Administrative Agent on or before April 15, 2006behalf of the Lenders at least ten (10) days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Bioverativ Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial any Credit Extension hereunder is on the Closing Date iswas subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each the signing Loan PartyParty or the Lenders, as applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement, Agreement sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party or is to become a party;
(viv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxx Xxxxxxxx & XxxxxxxLLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Agent may reasonably request;
(vii) 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;
(viiivi) a certificate signed by a Responsible Officer of AFG 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 April 2, 2020 that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and , (C) to the current Debt RatingsSolvency 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, subject to Section 6.21, 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) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFGFacility Guaranty;
(x) evidence that all other Loan Documents, each duly executed by the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in fullapplicable Loan Parties;
(xi) executed Subordination Agreement 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;
(xii) all documents and instruments, including Uniform Commercial Code financing statements, required by each Borrower’s Subsidiaries law or reasonably requested by the Agent to be filed, registered or recorded to create or perfect the first priority Liens (subject to Permitted Encumbrances that have priority by operation of Law) intended to be created under the Loan Documents and Affiliates all such documents and instruments shall have been so filed, registered or recorded to which each Borrower has any Indebtednessthe satisfaction of the Agent; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any After giving effect to (i) any Loans outstanding or made hereunder on the Closing Date, (ii) any charges to the Loan Account made on the Closing Date and (iii) all Letters of Credit issued or outstanding on the Closing Date, Availability shall be not less than $80,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the Fiscal Month ended on April 4, 2020, 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 April 2, 2020.
(e) 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 current 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.
(f) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(g) There shall not have occurred any default of any Material Contract of any Loan Party.
(h) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(i) All fees related to this Agreement and expenses required to be paid to the Agent or the Arrangers on or before the Closing Date shall have been paidpaid in full, all fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full, and all fees and expenses required to be paid to the lenders under the Existing Credit Agreement shall have been paid in full.
(cj) Unless waived by the Administrative Agent, the Borrowers 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 Closing Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(dk) The Closing Date 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 with respect to any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Loan Party, which such Beneficial Ownership Certification shall be complete and accurate in all respects.
(l) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred on or before April 15, 2006prior 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 Consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented 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 (Five Below, Inc)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) fully executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Party Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Borrower (on behalf of each of the Loan Parties), addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit B and such other matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all applicable consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG the Parent certifying (A) that each Consolidated Party is in compliance in all material respects with all existing contractual financial obligations, (B) all governmental, shareholder and third party consents and approvals necessary for the Loan Parties to enter into the Loan Documents and fully perform thereunder, if any, have been obtained, (C) immediately after giving effect to this Agreement, the other Loan Documents and all the transactions contemplated therein to occur on such date, (1) each of the Loan Parties is solvent, (2) no Default or Event of Default exists, or would result from such proposed Credit Extension or from the application of the proceeds thereof, (3) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects, and (4) the Loan Parties are in compliance with each of the financial covenants set forth in Section 7.11 (and including detailed calculations of each such financial covenant); (D) that the conditions specified in Sections 4.02(a) and (b) this Section 4.01 have been satisfied; (E) that, and (B) that to such Responsible Officer's knowledge, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (CF) the current Debt Ratings;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a duly completed Compliance Certificate Request for Credit Extension in accordance with the period ending December 31, 2005, signed by a Responsible Officer of AFGrequirements hereof;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, documents or consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) There shall not have occurred a material adverse change since December 31, 2010 in the business, assets, operations, condition (financial or otherwise) or prospects of the Borrower and the other Loan Parties taken as a whole, as reasonably determined by the Administrative Agent.
(c) There shall not exist any action, suit, investigation, or proceeding pending or threatened, in any court or before any arbitrator or governmental authority that could have a Material Adverse Effect, as reasonably determined by the Administrative Agent.
(d) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(ce) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Bridge Term Loan Agreement (Tanger Properties LTD Partnership /Nc/)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each the signing Loan PartyParty (or such other Person designated in the respective subparagraph below), 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 AgreementAgreement and the Facility Guaranty, sufficient in number for distribution to the Administrative each Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note, provided that the Canadian Borrower shall not execute a Note in favor of any Lender other than the Canadian Fronting Lender and the Canadian Funding Lenders, and the Australian Borrower will not execute a Note in favor of any Lender other than the Australian Fronting Lender and the Australian Funding Lenders;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer of each Borrower AMS 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 Borrower any Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Party Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its such Person’s 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;
(viv) a favorable opinion opinions of Xxxxxxx, Xxxxxxxx & Xxxxxxx(A) Sxxx Pxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative each Agent and each Lender, substantially in the form attached as Exhibit I-1, and (B) foreign counsel to the matters concerning AFG and its Subsidiaries and Loan Parties substantially in the Loan Documents forms attached as the Required Lenders may reasonably requestExhibits I-2 through I-4;
(viivi) a certificate of a Responsible Officer of each Borrower AMS either (A) attaching copies of all consentsconsents (including consents of existing lenders or bondholders), licenses and approvals required in connection with the execution, delivery and performance by such Borrower each Loan Party and the validity against such Borrower Loan Party of the Loan Documents to which it is a party, and certifying that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) receipt and satisfactory review by the Administrative Agent of the consolidated financial statements of AMS for the fiscal years ended 1999, 2000 and 2001, including balance sheets, income and cash flow statements audited by independent public accountants of recognized national standing and prepared in conformity with GAAP and such other financial information as the Administrative Agent may reasonably request;
(viii) a letter from the general counsel of AMS or responsible outside counsel of AMS addressed to the Administrative Agent and the Lenders as to the absence of (A) in the case of the litigation described in Part II, Item 1 (Legal Proceedings) of the Quarterly Report on Form 10-Q of AMS, filed August 14, 2002, for the period ended June 30, 2002 (the “6/02 10-Q”), any materially adverse development in such litigation from its status as described in the 6/02 10-Q, and (B) any other action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or Governmental Authority that purports (1) to materially and adversely affect (y) any Borrower or (z) AMS and its Subsidiaries taken as a whole, or (2) to materially and adversely affect any transaction contemplated hereby or the ability of AMS and its Subsidiaries to perform their respective obligations under this Agreement and the other Loan Documents;
(ix) evidence of insurance covering AMS and its Subsidiaries;
(x) a certificate signed by a Responsible Officer of AFG AMS 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 would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the current Debt RatingsConsolidated Leverage Ratio as of the last day of the fiscal quarter of AMS most recently ended prior to the Closing Date;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(xxi) evidence that the Existing AFG Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in fullreleased;
(xixii) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates a completed Compliance Certificate with respect to which each Borrower has any Indebtednessthe period ended June 30, 2002; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as any Agent, the Administrative Agent L/C Issuer, the Swing Line Lender, the Canadian Fronting Lender, the Australian Fronting Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid to any Agent, Syndication Agent or Lender or any of their respective Affiliates or outside counsel on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agents and the Syndication Agent, the Borrowers shall have paid all fees, charges Attorney Costs of the Agents and disbursements of counsel to the Administrative Syndication Agent (directly to such counsel if requested by the Administrative Agent) to the extent required to be reimbursed hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its their reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it them through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agents or the Syndication Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The effectiveness of this Agreement and 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 having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies pdf copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrowerthe Borrower and executed counterparts of the Advisor Fee Subordination Agreement;
(ii) a Note Notes executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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 qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;formation.
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & XxxxxxxXxxxx Xxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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; , and (C) that, after giving effect to all requested Credit Extensions to be made on the current Debt RatingsClosing Date, the Total Outstandings shall not exceed the Borrowing Base as of the Closing Date;
(ixviii) a duly completed Compliance Certificate for as of the period ending December 31last day of the fiscal quarter of the Borrower ended on September 30, 20052010, signed by a Responsible Officer of AFGthe Borrower;
(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 AFG Credit Agreement dated as of May 23, 2008, among the Borrower, the lenders party thereto and Bank of America, N.A., as administrative agent, swing line lender and letter of credit issuer (the “Existing Credit Agreement”), has been or concurrently with the Closing Date is being terminated, all amounts owing thereunder have been paid in full and all Liens securing obligations under the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednessreleased; and
(xiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Cole Credit Property Trust II 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 having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or in electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each 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 AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, Parties reasonably acceptable to Agent addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may in form and substance reasonably requestsatisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower Loan Party of the Loan Documents to which it is a party, F or p er so na l u se o nl 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;
(viiivii) a certificate signed by a Responsible Officer of AFG Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; , and (C) after giving effect to this Agreement and the current Debt Ratingsother Loan Documents (including after giving effect to the initial Loans under this Agreement), Borrower will be Solvent;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a duly completed Compliance Certificate for as of the period ending December 31last day of the fiscal quarter of Borrower ended June 30, 20052013, signed by a Responsible Officer of AFGBorrower;
(x) evidence that all commitments under that certain Credit Agreement dated as of February 10, 2011 among Borrower and MUFG Union Bank, N.A., as administrative agent and lender (as amended and restated from time to time, the “ Existing Credit Agreement ”), have been or concurrently with the Closing Date are being terminated, and all outstanding amounts thereunder paid in full and all Liens securing obligations under the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednessreleased; and
(xiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid in connection with this Agreement (including but not limited to the Agent Fee Letter) on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15November 27, 20062013. Without limiting the generality of the provisions of the last sentence of Section 9.049.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be F or p er so na l u se o nl 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
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 having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies electronic transmissions by portable document format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each 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, Agreement sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party or is to be a party;
(viv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of (1) Xxxxxx, Xxxxx & Xxxxxxx, Xxxxxxxx & XxxxxxxLLP, counsel to the Loan Parties, (2) local counsel to the Loan Parties in each state where there is Eligible Real Estate and (3) local counsel to the Loan Parties in each state where such Loan Parties are organized, each addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(vii) 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;
(viiivi) a certificate signed by a Responsible Officer of AFG 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; Effect and (C) other than those which, individually or in the current Debt Ratingsaggregate, would not reasonably be expected to result in a Material Adverse Effect, 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 are in full force and effect;
(ixvii) a duly completed Compliance Certificate for evidence that all insurance required to be maintained pursuant to the period ending December 31, 2005, signed by a Responsible Officer Loan Documents and all endorsements in favor of AFGthe Agents required under the Loan Documents have been obtained and are in effect;
(xviii) evidence a payoff letter from Deutsche Bank Trust Company Americas, as agent for the lenders under the Existing Credit Agreement evidencing that the Existing AFG 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 GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated released;
(ix) a certificate from the chief financial officer of the Borrower, attesting to the Solvency of the Loan Parties taken as a whole as of the Closing Date after giving effect to the transactions contemplated hereby;
(x) the Security Documents (including, without limitation, the Mortgages and all outstanding fees and interest related thereto have been paid certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in fullblank), each duly executed by the applicable Loan Parties;
(xi) all other Loan Documents, each duly executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; andthe applicable Loan Parties;
(xii) (A) appraisals by a third party appraiser engaged by the Collateral Agent of all Inventory, Prescription Lists, and Rolling Stock of the Borrower, the results of which are reasonably 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 reasonably satisfactory to the Collateral Agent;
(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 Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any Mortgages, and releases or subordination agreements reasonably satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements reasonably 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 (other than the Mortgages) shall have been so filed, registered or recorded to the reasonable satisfaction of the Collateral Agent (or arrangements satisfactory to the Collateral Agent in its discretion for such filing, registration or recordation shall have been made), and (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof;
(xv) 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;
(xvi) with respect to each parcel of Eligible Real Estate, fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements and in amounts reasonably acceptable to the Collateral Agent, issued by First American Title Insurance Company or other title insurers reasonably acceptable to the Collateral Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all Liens (including, but not limited to, mechanics’ and materialmen’s Liens) excepting only Permitted Encumbrances and other Liens permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property) as the Collateral Agent may deem reasonably necessary or desirable,
(xvii) American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid (or arrangements for payment reasonably satisfactory to the Collateral Agent have been made), and dated no more than 30 days before the day of the initial Credit Extension, certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and reasonably acceptable to the Collateral Agent, showing all buildings and other improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than Permitted Encumbrances, encroachments and other defects reasonably acceptable to the Collateral Agent,
(xviii) With respect to each parcel of Eligible Real Estate, an environmental assessment report, in form and substance reasonably satisfactory to the Collateral Agent, from Xxxxx, which report shall identify existing and potential environmental concerns and shall quantify related costs and liabilities, associated with any facilities of the Borrower or any of its Subsidiaries, and the Collateral Agent shall be reasonably satisfied with the nature and amount of any such matters;
(xix) an appraisal of each of the properties described in the Mortgages complying with the requirements of FIRREA by a third party appraiser engaged by the Collateral Agent and otherwise in form and substance reasonably satisfactory to the Collateral Agent;
(xx) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders Agents reasonably may require.
(b) Any 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 (or deemed issued) at, or immediately subsequent to, such establishment, Excess Availability shall be not less than $75,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the Fiscal Period ended on February 23, 2008 and executed by a Responsible Officer of the Borrower.
(d) The Administrative Agent shall be reasonably satisfied with the capital structure (including outstanding indebtedness) of the Borrower and its Subsidiaries.
(e) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present in all material respects 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.
(f) The Administrative Agent shall have received and be reasonably satisfied with (i) pro forma consolidated financial statements of the Borrower and its Subsidiaries, and forecasts prepared by management of the Borrower, each in form and substance reasonably satisfactory to the Administrative Agent, consisting of (A) balance sheets, income statements, and cash flow statements (including a calculation of Availability) on a monthly basis for fiscal year 2008, and (B) balance sheets, income statements, and cash flow statements (including a calculation of Availability) on an annual basis for each Fiscal Year thereafter through the Fiscal Year in which the Maturity Date occurs, and (ii) an internally prepared balance sheets, income statements, and cash flow statement as of a date not more than 30 days prior to the Closing Date.
(g) There shall not be pending any action, suit, investigation, 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 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 related to this Agreement required to be paid to the Agents or the Arranger on or before the Closing Date shall have been paidpaid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(ck) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers and the Administrative Agent).
(dl) The Closing Date Administrative Agent 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 on or before April 15, 2006prior 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 Consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented 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 (Nash Finch Co)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, outside counsel to the Loan Parties, Parties acceptable to Agent addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestin form and substance satisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and (C) the current Debt Ratingsis in effect;
(ix) a duly completed Compliance Certificate for as of the period ending December 31, 2005last day of the fiscal quarter of Borrower most recently ended prior to the Closing Date, signed by a Responsible Officer of AFGBorrower;
(x) evidence that of the Existing AFG Credit Agreement final non-appealable court orders related to the Met-Coil Bankruptcy and the Existing GAFRI Credit Agreement have been or concurrently with terms and conditions of the Closing Date are being terminated Channeling Injunction received by the Borrower and all outstanding fees Met-Coil Systems Corporation on the terms and interest related thereto have been paid in full;conditions satisfactory to the Agent and the Lenders , and
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent, the Administrative Agent L/C Issuer, Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements reasonable Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15October 19, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto2004.
Appears in 1 contract
Samples: Credit Agreement (Mestek 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 having been metprecedent:
(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 each 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) eight (8) (or such lesser amount as the Administrative Agent shall agree) executed counterparts of this Agreement, sufficient in number for distribution to Agreement and the Administrative Agent, each Lender Guaranty and each BorrowerSecurity Instrument;
(iiA) a Revolving Note executed by each the Borrower in favor of each Revolving Lender requesting a Revolving Note, (B) a Term Loan Note executed by the Borrower in favor of each Term Loan Lender requesting a Term Loan Note and (C) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrower and its Subsidiaries (determined after giving effect to the Purchase) 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, which jurisdictions are set forth as of the Closing Date on Schedule 4.01 hereto, including certified copies of each Loan Party's Organization Documents, shareholders' agreements, certificates of good standing and/or qualification to engage in business;
(viv) a favorable opinion opinions of XxxxxxxGibson, Xxxxxxxx & XxxxxxxDunn and Crutcher LLP, counsel to the Loan Parties, xxx xf xxxxl Geoxxxx xxxnsel to the Loan Parties, each addressed to the Administrative Agent and each Lenderthe Lenders in the form of Exhibits G-1 and G-2, as to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably requestrespectively;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG certifying 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 (other than matters set forth on Schedule 5.10 to the Purchase Agreement (without giving effect to any amendment, alteration, addition, replacement or other change thereto after October 24, 2005 unless approved in writing by the Administrative Agent)) since the date of the Audited Financial Statements June 30, 2005 that has had or could be reasonably expected to have, either individually or in the aggregate, a Closing Date Material Adverse Effect; and ;
(C) that none of the current Debt RatingsPurchase Documents has been altered, amended, waived or otherwise changed or supplemented since their execution on October 24, 2005, in any respect materially adverse to the Borrower, the Administrative Agent or the Lenders, except to the extent agreed to by prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld;
(D) that (I) the Purchase has been consummated, or is being consummated substantially simultaneously herewith, in accordance in all material respects with the terms of the Purchase Documents and all other material documents with respect to the Purchase and in material compliance with applicable Laws and regulatory approvals, (II) the consent listed on Schedule 12.3 of the Purchase Agreement has been obtained (if such consent is required), (III) such consent is in force and effect, (IV) all applicable waiting periods have expired (including the expiration or early termination of any Hart-Scott-Rodino waiting period) without any action being taken by xxx Xxxxrnmental Authority that could restrain, prevent or impose any material adverse conditions on the Purchase or that could seek or threaten any of the foregoing, and (V) all conditions precedent to the consummation of the Purchase have been satisfied (or will be satisfied concurrently with the consummation hereof) without waiver (except to the extent such waiver does not affect the Borrower, the Administrative Agent or the Lenders in a materially adverse manner);
(E) that after giving effect to the Purchase and all Credit Extensions under this Agreement made on the Closing Date and the incurrence of any other indebtedness on the Closing Date, the sum of (x) cash on the balance sheet of the Borrower plus (y) the amount by which the Aggregate Revolving Credit Commitments exceed the aggregate Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C Obligations shall not be less than $10,000,000;
(viii) a certificate of the chief financial officer of the Borrower stating that, after giving effect to the entering into of the Loan Documents and the consummation of all of the Transactions, the Borrower and its Subsidiaries, measured on a consolidated basis, are Solvent;
(ix) a duly completed Compliance Certificate for evidence that all insurance required to be maintained pursuant to the period ending December 31, 2005, signed by a Responsible Officer of AFGLoan Documents has been obtained and is in effect;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in fullan initial Revolving Loan Notice, if any;
(xi) an initial Term Loan Interest Rate Selection Notice, if any;
(xii) 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 in and to such other Collateral as the Administrative Agent may reasonably require, including the delivery by the Borrower of all certificates evidencing Pledged Interests, accompanied in each case by duly executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednessstock powers (or other appropriate transfer documents) in blank affixed thereto; and
(xiixiii) such other assurances, certificates, documents, consents or opinions Uniform Commercial Code search results showing only those Liens as are reasonably acceptable to the Administrative Agent or the Required Lenders reasonably may requireAgent.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Infocrossing Inc)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each 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 Lendersits legal counsel:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications certificates as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, formed and that Borrower and each Loan Party is Guarantor is, validly existing, existing and in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan PartiesParties acceptable to Agent, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestin form and substance satisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 reasonably be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; , and (C) a calculation of the current Debt Ratingsfinancial covenants set forth in Section 7.12 as of the last day of the fiscal quarter of Borrower ended April 1, 2006;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG Credit Agreement dated as of August 26, 2003, as amended or modified, among Borrower, Bank of America, as agent and a syndicate of lenders (the "Existing GAFRI Credit Agreement have Agreement") has been or concurrently with the Closing Date are is being terminated terminated, and that all outstanding fees loans and interest related thereto obligations thereunder have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15July 31, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each the signing Loan Party, each dated the the date of this Agreement or the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Unconditional Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) 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 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 would not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan PartiesBorrower’s counsel, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 would reasonably be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings, if any, and a calculation of the Leverage Ratio as of the last day of the fiscal quarter of Borrower most recently ended prior to the Closing Date; and (D) to the extent Borrower’s Debt Rating is not an Investment Grade Rating as of the Closing Date, a pro forma Borrowing Base Report for the period ending on March 31, 2006;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a duly completed Compliance Certificate for evidence that the period ending December 31, 2005, signed by a Responsible Officer of AFGExisting Credit Agreement has been or concurrently with the Closing Date is being terminated;
(x) evidence that a waiver to the Existing AFG Credit Agreement Senior Term Loan Agreement, in a form and the Existing GAFRI Credit Agreement have substance acceptable to Administrative Agent, has been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednessexecuted; and
(xiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, any L/C Issuer, Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of Section 9.0410.04, 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Senior Unsecured Revolving Credit Agreement (Wci Communities Inc)
Conditions of Initial Credit Extension. The obligation of each the Lender to make its any initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative AgentLender’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifiedfollowing items, each properly executed by a Responsible Officer of each the signing Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent Lender and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to each of the Administrative Agent, each Lender Security Instruments and each Borrowerthe Subordination Agreement;
(ii) a Note Note(s) executed by each the Borrower in favor of each Lender requesting a Notethe Lender;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates (including specimen signatures), and/or other certificates of Responsible Officers of each Borrower Loan Party as the Administrative Agent Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Borrower Loan Party is a party;
(viv) such 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 Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or organization and in any other jurisdiction in which 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, including certified copies of each Loan Party’s Organizational Documents, certificates of good standing and/or qualification to engage in business from each jurisdiction identified on Schedule 5.01 hereto;
(viv) a favorable opinion of Xxxxxxxxx Xxxxxxx, Xxxxxxxx & XxxxxxxP.A., counsel to the Loan Parties, and, if applicable, appropriate local counsel to the Loan Parties, each addressed to the Administrative Agent Lender and each Lenderits successors and assigns, as to the matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Lender may reasonably request;
(viivi) a certificate certificates of a Responsible Officer Officers of each the Borrower or the applicable Loan Parties (1) either (A) attaching copies of identifying all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower each Loan Party and the validity against each such Borrower Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, and attaching true and correct copies thereof or (B) stating that no such consents, licenses or approvals are so requiredrequired and (2) in the case of the Borrower, certifying as to true, correct and complete copies of all documents and instruments governing or evidencing any Subordinated Indebtedness;
(A) audited financial statements of Holdings and its Subsidiaries for each of the three fiscal years immediately preceding the Closing Date, (B) unaudited interim financial statements for Holdings and its Subsidiaries for the fiscal quarter ending September 30, 2021, and (C) financial projections of Holdings and its Subsidiaries for the next three (3) fiscal years;
(viii) a certificate signed by a Responsible the Chief Financial Officer of AFG the Borrower certifying that, after giving effect to the entering into of the Loan Documents and the consummation of all of the Transactions, (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, Borrower is Solvent 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 haveLoan Parties, either individually or in the aggregatetaken as a whole, a Material Adverse Effect; and (C) the current Debt Ratingsare Solvent;
(ix) a duly completed Compliance Certificate for subject to Section 7.20, evidence that all insurance required to be maintained pursuant to the period ending December 31, 2005, signed by a Responsible Officer of AFGLoan Documents has been obtained and is in effect;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in fullan initial Borrowing Base Certificate;
(xi) executed Subordination Agreement initial written Advance Request Notice;
(xii) delivery of Uniform Commercial Code financing statements, suitable in form and substance for filing in all places required by each Borrower’s Subsidiaries applicable Law to perfect the Liens of the Lender 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 Affiliates such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to which each Borrower has perfect the Liens of the Lender under such Security Instruments as a first priority Lien in and to such other Collateral as the Lender may require;
(xiii) Uniform Commercial Code search results showing only those Liens as are acceptable to the Lender;
(xiv) the Lender shall have received evidence of the payment in full and cancellation of all existing Indebtedness for borrowed money of the Loan Parties, other than any IndebtednessIndebtedness permitted under Section 8.01, including terminations of Uniform Commercial Code and other financing statements filed in connection with such existing Indebtedness and other evidence of Lien releases and other related matters on terms acceptable to the Lender; and
(xiixv) such other assurances, certificates, documents, consents or opinions as evidence that the Administrative Agent or Borrower has made a minimum equity investment of $1,000 in the Required Lenders reasonably may requireLender.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers The Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) Lender 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 reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative AgentLender).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension Loan hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each Loan Partythe 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) fully executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a an Amended and Restated Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each 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 Borrower is a party;
(viv) 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 Loan Party Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could would not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, Borrower addressed to the Administrative Agent and each Lender, as to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably requestset forth in Exhibit B;
(vii) 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;
(viiivi) a certificate signed by a Responsible Officer of AFG certifying (A) that each Consolidated Party is in compliance in all material respects with all existing contractual financial obligations except where the failure to comply would not reasonably be expected to have a Material Adverse Effect, (B) all governmental, shareholder and third party consents and approvals necessary for the Borrower to enter into the Loan Documents and perform thereunder, if any, have been obtained, except where the failure to obtain would not reasonably be expected to have a Material Adverse Effect, (C) immediately after giving effect to this Agreement, the other Loan Documents and all the transactions contemplated therein to occur on such date, (1) to such Responsible Officer’s knowledge, no Default or Event of Default exists, (2) all representations and warranties contained herein are true and correct in all material respects, and (3) the Borrower is in pro forma compliance with each of the financial covenants set forth in Section 7.11 for the fiscal quarter ending June 30, 2014 (which calculation, including a detailed calculation of each such financial covenant, has been delivered to the Administrative Agent prior to Closing); (D) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, ; and (BE) that that, to such Responsible Officer’s knowledge, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(xvii) evidence that all insurance required to be maintained pursuant to the Existing AFG Credit Agreement Loan Documents has been obtained and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid is in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednesseffect; and
(xiiviii) such other assurances, certificates, documents, documents or consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) There shall not have occurred since June 30, 2014 any event or condition that has had or would be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect, as determined by Administrative Agent.
(c) There shall not exist any action, suit, investigation, or proceeding pending, or to the knowledge of Borrower, threatened in writing, in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect, as determined by the Administrative Agent.
(d) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid and all reimbursable expenses for which invoices have been presented to Borrower on or before the Closing Date shall have been paid.
(ce) Unless waived by the Administrative Agent, the Borrowers 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 to Borrower prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Franklin Street Properties Corp /Ma/)
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 having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies pdf copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each 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 AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrower and the Trust is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, 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 AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; Effect and (C) a calculation of the current Debt RatingsConsolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(ixviii) a duly completed Compliance Certificate for as of the period ending December 31last day of the fiscal quarter of the Borrower ended on September 30, 20052012, signed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xiiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may reasonably require.
(b) Any fees related to this Agreement required to be paid to the Administrative Agent or any Lender in connection with this Agreement or the Fee Letter on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date that is three 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Dividend Capital Diversified Property Fund Inc.)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies electronically (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each BorrowerLoan Party;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Notethe Term Notes;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, Parties reasonably acceptable to Agent addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may in form and substance reasonably requestsatisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and (C) the current Debt Ratingsis in effect;
(ix) a duly completed Compliance Certificate for as of the period ending December 31, 2005last day of the fiscal quarter of Borrower most recently ended prior to the Closing Date, signed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of the last sentence of Section 9.049.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Term Loan Agreement (CNL Healthcare Properties, Inc.)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative Agent’s (or its counsel’s) receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each the signing Loan PartyParty (as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement, sufficient in number for distribution Agreement (or written evidence satisfactory to the Administrative Agent, each Lender and each BorrowerAgent (which may include a facsimile or other electronic transmission) that such party has signed a counterpart);
(ii) a Note executed by each the Borrower in favor of each Lender requesting a NoteNote to the extent such Lender requests such Note at least three Business Days prior to the Closing Date;
(iii) a certificate dated the AFG Guaranty, duly Closing Date and executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each 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 Borrower is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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 Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of each Borrower either of the Loan Parties, certifying (AA)(x) attaching copies that attached thereto is a true and complete copy of all consentsthe articles or certificate of incorporation or other comparable organizational documents of such Loan Party, licenses certified by the relevant authority of the jurisdiction of organization of such Loan Party and approvals required in connection with a true and complete copy of the bylaws, operating or comparable governing document of such Loan Party, if applicable, and (y) that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and (B)(x) that attached thereto is a true and complete copy of resolutions or written consents of its shareholders or board of directors or other relevant governing body, as the case may be, authorizing the execution, delivery and performance by such Borrower of this Agreement and the validity against such Borrower of the other Loan Documents to which it is a party, and that such consentsresolutions or written consents have not been modified, licenses rescinded or amended and approvals shall be are in full force and effecteffect without amendment, modification or rescission, and (By) stating that no as to the incumbency and genuineness of the signature of the officers, directors, managers or other authorized signatories of each Loan Party, executing this Agreement and the other Loan Documents to which it is a party.
(iv) the Administrative Agent shall have received a certificate as of a recent date of the good standing (or equivalent) of each of the Loan Parties under the laws of its jurisdiction of organization from the relevant authority of its jurisdiction of organization (solely to the extent such consents, licenses or approvals are so requiredconcept is applicable for the relevant jurisdiction);
(viiiv) subject to the last paragraph of this Section 4.01, the legal opinion of Xxxxxxxx & Xxxxx LLP, acting as special counsel for the Borrower, addressed to the Administrative Agent and each Lender and reasonably satisfactory to the Administrative Agent;
(vi) a certificate signed by a Responsible Officer of AFG certifying (A) that the conditions specified Borrower, dated as of the Closing Date, as to the matters set forth in Sections 4.02(aSection 4.01(c), (g), (h) and (i);
(bvii) have been satisfieda Loan Notice or Letter of Credit Application, and as applicable, relating to the initial Credit Extension;
(Bviii) that there has been no event a certificate from the chief financial officer or circumstance since the date other Responsible Officer of the Audited Financial Statements that has had or could be reasonably expected Borrower attesting to havethe Solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date, either individually or substantially in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratingsform of Exhibit L hereto;
(ix) a duly completed Compliance Certificate Subject to the last paragraph of this Section 4.01, each document (including any UCC (or similar) financing statement) required by the applicable Collateral Documents listed on Schedule 4.01(a)(ix) or under law to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the period ending December 31benefit of the Secured Parties, 2005a perfected Lien on the Collateral required to be delivered on the Closing Date, signed prior and superior in right to any other Person (other than with respect to Liens permitted under this Agreement), shall be in proper form for filing, registration or recordation.
(A) certificates representing any certificated Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt endorsed in blank;
(B) a completed Perfection Certificate, dated the Closing Date and executed by a Responsible Officer of AFGthe Loan Parties;
(xC) evidence that Intellectual Property Security Agreements, if any, duly executed by each Loan Party required to execute such Intellectual Property Security Agreement pursuant to the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently Security Agreement, in proper form for filing with the Closing Date are being terminated United States Patent and all outstanding fees and interest related thereto have been paid in fullTrademark Office or United States Copyright Office, as applicable;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any all fees related pursuant to this Agreement the Fee Letter and reasonable and documented out-of-pocket expenses required to be paid by (or on behalf of) the Borrower to the Administrative Agent, the Arrangers and the Lenders on or before the Closing Date shall have been paidpaid in full in cash (which amounts may be offset against the loan proceeds funded on the Closing Date) (and in the case of expenses, to the extent invoiced at least three Business Days prior to the Closing Date).
(c) Unless waived by the Administrative Agentsince August 8, the Borrowers 2018, (i) no Closing Date Material Adverse Effect shall have paid all feesoccurred that is continuing and (ii) no Effect (as defined in the Acquisition Agreement) shall have occurred that, charges and disbursements of counsel individually or in the aggregate, would reasonably be expected to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the have a Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)Date Material Adverse Effect.
(d) The No later than three (3) Business Days in advance of the Closing Date Date, the Administrative Agent shall have occurred received all documentation and other information about the Borrower and the Guarantors reasonably requested by the Administrative Agent (on behalf of any Lender) in writing at least ten (10) Business Days in advance of the Closing Date, which documentation or before April 15other information is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, 2006including without limitation the USA PATRIOT Act and a beneficial ownership certificate to the extent required under 31 C.F.R. §1010.230.
(e) The Lead Arrangers shall have received the Specified Financial Statements and the Pro Forma Financial Statements.
(f) The Refinancing shall have been consummated, or shall be consummated substantially simultaneously with the borrowing of the Initial Term Loans.
(g) The Equity Contribution shall have been made, or will be made substantially concurrently with the borrowing of the Initial Term Loans.
(h) The Acquisition shall have been consummated, or shall be consummated substantially concurrently with the making of the Initial Credit Extension hereunder, in each case, in all material respects in accordance with the terms of the Acquisition Agreement without giving effect to any modifications, amendments, waivers or consents by Merger Sub (or its applicable affiliate) that are materially adverse to the interests of the Lenders (in their capacity as such).
(i) The Specified Acquisition Agreement Representations shall be true and correct as required by the terms of the definition thereof and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be. Without limiting the generality of the provisions of Section 9.04Section 9.03(b), for purposes of determining compliance with the conditions specified in this Section Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Notwithstanding anything to the contrary contained herein, none of the making of any representation under Article 5 (except as expressly set forth in Section 4.01(i)) or the accuracy of any such representation or any supplement thereto (except as expressly set forth in Section 4.01(i)) shall constitute a condition precedent to the availability and/or initial funding of the Facilities on the Closing Date, and the only conditions (express or implied) to the availability of the Facilities on the Closing Date are those expressly set forth in this Section 4.01, and such conditions shall be subject in all respects to the provisions of this Section 4.01, including the paragraph below. Notwithstanding the foregoing, to the extent any Guaranty or Collateral (including the creation or perfection of any security interest) is not or cannot be provided on the Closing Date (other than, (i) the Guaranties executed by the Closing Date Loan Parties, (ii) a Lien on Collateral of the Closing Date Loan Parties that may be perfected solely by the filing of a financing statement under the UCC and (iii) a pledge of the Equity Interests of the Closing Date Loan Parties (other than Holdings) with respect to which a Lien may be perfected on the Closing Date by the delivery of a stock or equivalent certificate (or entry in a stock register or equivalent)) after the Borrower’s or Holdings’ use of commercially reasonable efforts to do so without undue burden or expense, then the provision of any such Guaranty or Lien search and the provision and/or perfection of such Collateral (and, in the case of any such Guaranty or Collateral, any legal opinion or other deliverables with respect thereto required under Sections 4.01(a)(v)) shall not constitute a condition precedent to the availability and initial funding of the Loans on the Closing Date but may, if required, instead be delivered and/or perfected in accordance with Section 6.13 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 having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or in electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each 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, all Collateral Documents and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, Parties reasonably acceptable to Agent addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may in form and substance reasonably requestsatisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; , and (C) after giving effect to this Agreement and the current Debt Ratingsother Loan Documents (including after giving effect to the initial Loans under this Agreement), Borrower will be Solvent;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a duly completed Compliance Certificate for as of the period ending December 31last day of the fiscal quarter of Borrower ended September 30, 20052010, signed by a Responsible Officer of AFGBorrower;
(x) evidence that all commitments under (i) that certain Second Amended and Restated Loan Agreement dated as of March 1, 2006 among ResMed Corp., ResMed EAP Holdings Inc., ResMed Motor Technologies Inc., as borrowers, Borrower, as guarantor, and Union Bank, N.A., as agent and lender; and (ii) that certain Syndicated Facility Agreement dated as of June 8, 2006 among ResMed Limited, as borrower, ResMed Inc., ResMed Corp., ResMed SAS, ResMed GmbH & Co. KG, ResMed (UK) Limited, Take Air Medical Handels-GmbH, as guarantors, Hong Kong and Shanghai Banking Corporation, as a lender and HSBC Bank Australia Limited as a lender and as facility agent, as amended and restated from time to time (collectively, the “Existing Credit Agreement”), have been or concurrently with the Closing Date are being terminated, and all outstanding amounts thereunder paid in full and all Liens securing obligations under the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednessreleased; and
(xiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid in connection with this Agreement (including but not limited to the Agent Fee Letter) on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15February 28, 20062011. Without limiting the generality of the provisions of the last sentence of Section 9.049.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Resmed Inc)
Conditions of Initial Credit Extension. The obligation of each the Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative Agent’s Lender'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 each Loan PartyOfficer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent Lender and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a the Note executed by each Borrower in favor of each Lender requesting a Notethe Borrower;
(iii) a Guaranty Agreement for each Guarantor and, where appropriate, a joinder from the AFG Guaranty, duly executed by AFG;spouse of each married Guarantor.
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower Loan Party as the Administrative Agent Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Borrower Loan Party is a party;
(v) such documents and certifications as the Administrative Agent Lender may reasonably require to evidence that each Loan Party Borrower is duly organized or formed, and that each Loan Party Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;; and
(vi) a favorable opinion of Xxxxxxx, Xxxxxxxx & XxxxxxxMcAfee Xxxx a Professional Corportion, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Lender may reasonably request;
(vii) 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;
(viii) a certificate signed by a Responsible Officer of AFG 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) the current Debt Ratings;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related including, but not limited to this Agreement the Commitment Fee, required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers The Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative AgentLender).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Subsidiary Guaranty, and Security Documents with respect to the Initial Borrowing Base Properties, in each case sufficient in number for distribution to the Administrative Agent, each Lender Lender, Parent, and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & XxxxxxxXxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG Borrower certifying (A) that the conditions specified in Sections 4.02(a6.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Historical 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 current Debt RatingsProforma Financial Statements, and (D) a proforma calculation of the Total Leverage Ratio as of the Closing Date;
(viii) a certificate signed by a Responsible Officer of Parent certifying (A) pro forma compliance with all financial covenants set forth in Section 9.15; and (B) 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;
(ix) a duly completed Borrowing Base Report and Compliance Certificate for as of the period ending last day of the fiscal quarter of Borrower ended on December 31, 20052012, signed by a Responsible Officer of AFGBorrower and Parent;
(x) evidence that the Existing AFG Credit Agreement Property Information and the Existing GAFRI Credit Agreement have been or concurrently documentation required pursuant to Section 5.11 with respect to each of the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in fullInitial Borrowing Base Properties;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and Affiliates to which each Borrower has any Indebtednessis in effect; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, L/C Issuer or the Required Lenders may reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date Administrative Agent and Lenders shall have occurred on or before April 15, 2006received and be reasonably satisfied with the Pro Forma Financial Statements.
(e) The IPO shall have occurred. Without limiting the generality of the provisions of the last paragraph of Section 9.0411.03, for purposes of determining compliance with the conditions specified in this Section 4.016.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial any Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each the signing Loan PartyParty or the Lenders, as applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement, Agreement sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party or is to become a party;
(viv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxx Xxxxxxxx & XxxxxxxLLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Agent may reasonably request;
(vii) 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;
(viiivi) a certificate signed by a Responsible Officer of AFG 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 April 2, 2020 that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and , (C) to the current Debt RatingsSolvency 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, subject to Section 6.21, 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) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFGFacility Guaranty;
(x) evidence that all other Loan Documents, each duly executed by the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in fullapplicable Loan Parties;
(xi) executed Subordination Agreement 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;
(xii) all documents and instruments, including Uniform Commercial Code financing statements, required by each Borrower’s Subsidiaries law or reasonably requested by the Agent to be filed, registered or recorded to create or perfect the first priority Liens (subject to Permitted Encumbrances that have priority by operation of Law) intended to be created under the Loan Documents and Affiliates all such documents and instruments shall have been so filed, registered or recorded to which each Borrower has any Indebtednessthe satisfaction of the Agent; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any After giving effect to (i) any Loans outstanding or made hereunder on the Closing Date, (ii) any charges to the Loan Account made on the Closing Date and (iii) all Letters of Credit issued or outstanding on the Closing Date, Availability shall be not less than $80,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the Fiscal Month ended on April 4, 2020, 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 April 2, 2020.
(e) 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 current 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.
(f) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(g) There shall not have occurred any default of any Material Contract of any Loan Party.
(h) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(i) All fees related to this Agreement and expenses required to be paid to the Agent or the Arrangers on or before the Closing Date shall have been paidpaid in full, all fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full, and all fees and expenses required to be paid to the lenders under the Existing Credit Agreement shall have been paid in full.
(cj) Unless waived by the Administrative Agent, the Borrowers 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 Closing Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(dk) The Closing Date 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 with respect to any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Loan Party, which such Beneficial Ownership Certification shall be complete and accurate in all respects.
(l) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred on or before April 15, 2006prior 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 Consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented 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 (Five Below, 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 having been metprecedent:
(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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of XxxxxxxXxxxx Xxxx, Xxxxxxxx & XxxxxxxL.L.S.C., counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the corporate authority of the Loan Parties enforceability of the Loan Documents and such other matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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; Effect and (C) a calculation of each of the current Debt Ratingsfinancial covenants set forth in Section 7.01 as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(viii) evidence that each of the credit facilities under the Existing Credit Agreement shall have been (or will be upon the initial borrowings and issuance of Letters of Credit hereunder on the Closing Date and the application of the proceeds thereof) paid in full and fully satisfied and that the commitments under the Existing Credit Agreement shall have been terminated;
(ix) a duly completed Compliance Certificate for evidence that all insurance required to be maintained pursuant to the period ending December 31, 2005, signed by a Responsible Officer of AFGLoan Documents has been obtained and is in effect;
(x) The Administrative Agent shall have received evidence of the consummation of the issuance of the New Senior Notes on terms and subject to documentation (including with respect to any guarantees, if applicable, and that the proceeds thereof shall be used to repay outstanding revolving loans under the Existing AFG Credit Agreement and certain outstanding portions of the Existing GAFRI Credit Borrower’s existing commercial paper) satisfactory to the Administrative Agent; it is understood and agreed that the Note Purchase and Private Shelf Agreement have been or concurrently with dated as of March 31, 2010 is satisfactory to the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in fullAdministrative Agent for purposes hereof.;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement 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 the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.; and
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 having been metprecedent:
(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 each the signing Loan Party, each dated the Closing Date date of this Agreement (or, in the case of certificates of governmental officials, a recent date before the Closing Datedate of this Agreement) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party or is to be a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Party Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of XxxxxxxXxxxxxxx Xxxxxx, Xxxxxxxx & XxxxxxxP.C., counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit E and such other matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Transaction and the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 December 31, 2007, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation demonstrating compliance with the current Debt Ratingsfinancial covenants set forth in Section 7.11 on a pro forma basis after giving effect to the Transaction occurring on the date the Initial Credit Extension is made hereunder and (D) that Star Insurance and Century each have an A.M. Best Company financial strength rating of A- or better;
(viii) pro forma consolidated financial statements of the Borrower and its Subsidiaries that give effect to the Transaction and forecasts or projections prepared by management of the Borrower, in form satisfactory to the Administrative Agent, consisting 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 term of the Facilities;
(ix) a duly completed Compliance Certificate for certificates attesting to the period ending December 31Solvency of each Loan Party before and after giving effect to the Transaction, 2005, signed by a Responsible Officer of AFGfrom its chief financial officer;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement Agreements have been or concurrently with the Closing Date are being terminated terminated, all obligations under the Existing Credit Agreements have been or concurrently with the Closing Date are being repaid and all outstanding fees and interest related thereto Liens securing obligations under the Existing Credit Agreements have been paid in fullor concurrently with the Closing Date are being released;
(xi) certified copies of each of the Merger Agreement and such documents and instruments related thereto as the Administrative Agent may request, duly executed Subordination by the parties thereto, together with evidence that the Merger has occurred, or concurrently with the initial Credit Extension hereunder will occur, in accordance with the terms and conditions of the Merger Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednesson or before August 29, 2008; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(bi) Any All fees related to this Agreement required to be paid to the Administrative Agent and the Arranger on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension Term Loan hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:):
(i) executed counterparts of this Agreement, sufficient Agreement each properly executed by a Responsible Officer of the signing Loan Party and the Lenders in such number for distribution to as the Administrative Agent, each Lender and each BorrowerAgent may request;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a partyparty or is to become a party and each in form and substance reasonably satisfactory to the Agent;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Agent may reasonably request as to good standing in its jurisdiction of organization;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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 Xxxxxxx, Xxxxxxxx Xxxxxx & Xxxxxxx, counsel to the Loan Parties, Xxxxxxx LLP addressed to the Administrative Agent and each LenderLender on the Closing Date, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Agent may reasonably request, in form and substance reasonably satisfactory to the Agent;
(viivi) a certificate of a Responsible Officer of each the 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;
(viii) a certificate signed by a Responsible Officer of AFG certifying (A) that the conditions specified in Sections 4.02(a) and (b) this Section 4.1 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) to the current Debt RatingsSolvency 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 US-DOCS\117605822.23 KE 70583695.23 the execution, delivery and performance by the Loan Parties of the Loan Documents to which they are party, if any, have been obtained and are in full force and effect;
(ixvii) a duly completed Compliance Certificate for subject to Section 6.15, evidence reasonably satisfactory to the period ending December 31, 2005, signed by a Responsible Officer Agent that all insurance required to be maintained pursuant to the Loan Documents and all certificates and endorsements in favor of AFGthe Agent required under the Loan Documents have been obtained and are in effect;
(xviii) evidence that a payoff letter from the agent under the Existing AFG Credit Agreement Term Loan Facility reasonably satisfactory in form and substance to the Existing GAFRI Credit Agreement 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 terminated released;
(ix) 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 outstanding fees other Loan Documents (to the extent to be executed on the Closing Date), each duly executed by the applicable Loan Parties;
(x) the Intercreditor Agreement Joinder, dated as of the date hereof, and interest related thereto have been paid in fullfully executed by the ABL Agent, the Agent, and acknowledged by the Loan Parties;
(xi) executed Subordination Agreement 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 Liens permitted by Section 7.1 and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, in each Borrower’s Subsidiaries 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;
(xii) (A) all documents and Affiliates instruments, including Uniform Commercial Code financing statements reasonably requested by the Agent to which each Borrower has any Indebtednessbe 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) control agreements to the extent required under the Security Documents; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid[Reserved].
(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 the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial 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 having been metprecedent:
(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 each 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, all Collateral Documents and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note the Notes executed by each Borrower in favor of each Lender requesting a NoteNotes;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & XxxxxxxK + L Gates LLP, counsel to the Loan Parties, acceptable to Agent, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestin form and substance satisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 January 31, 2009 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) that the current Debt Ratingscalculation of the Consolidated Leverage Ratio based on the unaudited consolidated and consolidating financial statements of the Borrower and its Subsidiaries for its fiscal quarter ended January 31, 2009 previously provided to Administrative Agent pursuant to the Existing Credit Agreement is true and correct;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a duly completed Compliance Certificate modification endorsement dated on or after the date hereof to an ALTA extended coverage lender’s title insurance policy issued by a title insurance company acceptable to the Agent, for the period ending December 31real property covered by the Indiana Mortgage in an amount equal to $1,750,000, 2005insuring that fee simple title to such real property is vested in Borrower, signed by a Responsible Officer of AFG;
(x) evidence and assuring the Agent that the Existing AFG Credit Agreement Indiana Mortgage creates a valid and enforceable lien on the Existing GAFRI Credit Agreement have been or concurrently with real property covered thereby as security for the Closing Date are being terminated obligations secured by the Indiana Mortgage prior and all outstanding fees and interest related thereto have been paid superior in full;
(xi) executed Subordination Agreement right to any other person, subject only to exceptions approved by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any IndebtednessAgent in writing; and
(xiix) such other assurances, certificates, documents, consents or opinions as Agent, the Administrative Agent L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006A favorable standard flood hazard determination for the real property covered by the Indiana Mortgage issued by LSI Flood Services. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each the Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative AgentLender’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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent Lender and each of the Lendersits legal counsel:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) if requested by the Lender, a Revolving Note executed by each Borrower in favor of each Lender requesting a Notethe Borrower;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower Loan Party as the Administrative Agent Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Borrower Loan Party is a party;
(viv) such 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 Loan Party is validly existing, in good standing and qualified to engage in business in California, Delaware and each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Lender may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 2005 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 current Debt RatingsConsolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(ixviii) the Collateral Documents, including control agreements with respect to the bank and investment accounts of the Loan Parties, executed by each Loan Party and other Persons required to be a duly completed Compliance Certificate party thereto, in appropriate form for recording or filing, where necessary, together with:
(A) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the period ending December 31security interests of the Lender, 2005or the Lender for its benefit and the benefit of its Affiliates, signed by or other evidence satisfactory to the Lender that there has been filed, registered or recorded (or arrangements made with a Responsible Officer reputable filing service to file, register or record) all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of AFGthe Lender, or the Lender for its benefit and the benefit of its Affiliates, in accordance with applicable law;
(xB) evidence written advice relating to such Lien and judgment searches as the Lender shall have requested, and such termination statements or other documents as may be necessary to confirm that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid Collateral is subject to no other Liens in fullfavor of any Persons (other than Permitted Liens);
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid 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 the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Cnet Networks Inc)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each 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, Agreement sufficient in number for distribution to the Administrative Agent, each Lender and each the Lead Borrower;
(ii) a Note executed by each Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party or is to become a party;
(viv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & XxxxxxxXxxxx Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Agent may reasonably request;
(vii) 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;
(viiivi) a certificate signed by a Responsible Officer of AFG the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b4.02(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) to the current Debt RatingsSolvency 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 other than those, the failure of which to obtain, would not reasonably be expected to result in a Material Adverse Effect;
(ixvii) a duly completed Compliance Certificate for evidence that all insurance required to be maintained pursuant to the period ending December 31, 2005, signed by a Responsible Officer Loan Documents and all endorsements in favor of AFGthe Agent required under the Loan Documents have been obtained and are in effect;
(xviii) evidence 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 AFG 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 GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated 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 outstanding fees and interest related thereto have been paid in fullother Loan Documents, each duly executed by the applicable Loan Parties;
(xi) executed Subordination Agreement 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 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;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by each Borrower’s Subsidiaries 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 Affiliates all such documents and instruments shall have been so filed, registered or recorded to which each Borrower has any Indebtednessthe 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
(xiixiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders its counsel reasonably may require.
(b) Any 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 $7,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the week ended on September 13, 2014, 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 in all material respects 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 Borrower’s Business Plan and 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) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(h) All fees related to this Agreement and expenses required to be paid to the Agent on or before the Closing Date shall have been paidpaid in full (or substantially contemporaneously with the initial funding will pay), and all fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full (or substantially contemporaneously with the initial funding will pay).
(ci) Unless waived by the Administrative Agent, the The Borrowers shall have paid (or substantially contemporaneously with the initial funding will pay) 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 Closing Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(dj) The Closing Date Agent and the Lenders shall have occurred on or before April 15completed background checks of the Loan Parties’ owners, 2006shareholders 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, in each case, the results of which are 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 Consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented 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 (Cache 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 having been metprecedent:
(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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a NoteLender;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, Parties acceptable to Agent addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestin form and substance satisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and (C) the current Debt Ratingsis in effect;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(x) evidence that all commitments under the Credit Agreement dated June 18, 2002 among Borrower, Bank of America, as agent and a syndicate of lenders (the “Existing Credit Agreement”) have been or concurrently with the Closing Date are being terminated, and all outstanding amounts thereunder paid in full and all Liens securing obligations under the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednessreleased; and
(xiix) such other assurances, certificates, documents, consents or opinions as Agent, the Administrative Agent L/C Issuer or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15December 18, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation effectiveness of each Lender to make its initial Credit Extension hereunder this Agreement is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each 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 satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement, Agreement each properly executed by a Responsible Officer of the signing Loan Party and the Lenders sufficient in number for distribution to the Administrative Agent, each Lender and each the Lead Borrower;
(ii) a Note executed by each Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party or is to become a party;
(viv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of XxxxxxxBass, Xxxxxxxx Xxxxx & XxxxxxxXxxx PLC, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Agent may reasonably request;
(viivi) a certificate of a Responsible Officer of each the Lead 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;
(viii) a certificate signed by a Responsible Officer of AFG 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) to the current Debt RatingsSolvency 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; 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; 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;
(vii) all other Loan Documents, each duly executed by the applicable Loan Parties;
(viii) an updated commercial finance exam, the results of which are satisfactory to the Agent (which commercial finance exam will not be counted toward such commercial finance exam limits in Section 6.10(b));
(ix) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a duly completed Compliance Certificate 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 satisfactory to the Agent are being tendered concurrently herewith or other arrangements satisfactory to the Agent for the period ending December 31, 2005, signed by a Responsible Officer delivery of AFGsuch termination statements and releases have been made;
(xA) evidence that all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Existing AFG Credit Agreement Agent to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and the Existing GAFRI Credit Agreement all such documents and instruments shall have been so filed, registered or concurrently with recorded to the Closing Date are being terminated satisfaction of the Agent, (B) the Credit Card Notifications, and all outstanding fees and interest related thereto Blocked Account Agreements required pursuant to Section 6.12 hereof shall have been paid in full;
obtained, and (xiC) executed Subordination Agreement by each Borrower’s Subsidiaries control agreements with respect to the Loan Parties’ securities and Affiliates to which each Borrower has any Indebtednessinvestment accounts have been obtained; and
(xii) and such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related After giving effect to this Agreement required (i) any Loans outstanding hereunder, (ii) any charges to the Loan Account made in connection herewith and (iii) all Existing Letters of Credit and any other Letters of Credit to be paid on issued at, or before immediately subsequent to, such establishment, Availability shall be greater than $25,000,000 (calculated without giving effect to clause (a) of the Closing Date shall have been paidLoan Cap).
(c) Unless waived The Agent shall have received a Borrowing Base Certificate dated the Third Restatement Date, relating to the period ended on February 25, 2023, and executed by a Responsible Officer of the Lead Borrower.
(d) The Agent shall be reasonably satisfied that any financial statements 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.
(e) The Agent and the Lenders shall have received and be satisfied with (i) updated projections through the Loan Parties’ Fiscal Year ending February 3, 2024, 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) 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) 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.
(h) The consummation of the transactions contemplated hereby shall not violate any Law or any Organization Document.
(i) All fees required to be paid to the Agent 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.
(j) 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 Third 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 closing proceedings Third Restatement Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(dk) The Closing Date Agent and the Lenders shall have received all documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least ten (10) days prior to the Third Restatement Date. At least five (5) days prior to the Third Restatement 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.
(l) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred on or before April 15, 2006prior to the Third Restatement 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 Consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented 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 Third Restatement Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Kirkland'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 having been metprecedent:
(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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a NoteLender;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party or is to be a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party the Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably request;
(viiv) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Transaction and the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivi) a certificate signed by a Responsible Officer of AFG 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; , and (C) a calculation of the current Debt RatingsConsolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(ixvii) a duly completed Compliance Certificate for evidence that all insurance required to be maintained pursuant to the period ending December 31, 2005, signed by a Responsible Officer of AFGLoan Documents has been obtained and is in effect;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xiiviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders any Lender reasonably may require.
(bi) Any All fees related to this Agreement required to be paid to the Administrative Agent and the Arranger on or before the Closing Date shall have been paid, including, without limitation, those fees specified in the Fee Letter, and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each 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 Lendersits legal counsel:
(i) executed counterparts of this Agreement, the Collateral Documents, and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a NoteLender;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrower and each Subsidiary 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;
(viv) a favorable opinion of XxxxxxxAkin, Xxxxxxxx Gump, Strauss, Xxxxx & XxxxxxxXxxx, L.L.P., counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG the Borrower certifying (A) that the conditions specified in Sections 4.02(a5.02(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 (C) the current Debt Ratingsis in effect;
(ix) a duly completed Compliance Certificate for Uniform Commercial Code financing statements or amendments listing Borrower and each Guarantor as Debtor and covering the period ending December 31Collateral, 2005, signed as requested by a Responsible Officer of AFGAdministrative Agent;
(x) evidence that stock certificates evidencing all stock pledged pursuant to the Existing AFG Credit Borrower Security Agreement and the Existing GAFRI Credit Agreement have been or concurrently each Guarantor Security Agreement, as applicable, together with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid stock powers duly executed in fullblank;
(xi) original certificates of title, together with executed Subordination applications for title, for all vehicles used in connection with the transportation of lithotripters pledged pursuant to the Borrower Security Agreement and the Guarantor Security Agreements;
(xii) Uniform Commercial Code searches showing all financing statements and other documents or instruments, and tax and judgment lien searches showing all tax and judgment liens, on file against Borrower and Lithotripters, Inc., in such jurisdictions as the Administrative Agent shall require, such searches to be as of a date no more than twenty (20) days prior to the date of the initial Advance;
(xiii) The consolidated financial statements for Borrower and its Subsidiaries for the 1999, 2000, and 2001 fiscal years, each in form similar to the financial statements required under Section 7.01 below.
(xiv) Receipt and review, with results satisfactory to the Administrative Agent and its counsel, of information regarding litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, contingent liabilities and management of the Borrower and its Subsidiaries;
(xv) A Perfection Certificate, in substantially the form of Exhibit H hereto, properly completed and signed by each Borrower’s Subsidiaries the Chief Executive or Chief Financial Officer or Vice President-Finance of Borrower and Affiliates the Guarantors;
(xvi) a Compliance Certificate demonstrating, to which each Borrower has any Indebtednessthe satisfaction of Administrative Agent, the compliance on a pro forma basis for the Companies assuming all Lasik Divestitures have been completed; and
(xiixvii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(d) The Closing Date All obligations shall have occurred on or before April 15been repaid and all commitments terminated under that certain Loan Agreement dated January 31, 2006. Without limiting the generality 2000, by and between Prime Refractive Management, L.L.C., as borrower, Bank of the provisions of Section 9.04America, for purposes of determining compliance with the conditions specified in this Section 4.01as administrative agent, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a lenders party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative Agent’s receipt Lender shall have received and approved each 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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersLender:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Agreement and each Borrowerall Collateral Documents;
(ii) a Note executed by each Borrower in favor counterparts of each Lender requesting a Notethe Intercreditor and Collateral Sharing Agreement;
(iii) the AFG Guaranty, duly Notes executed by AFGBorrower in favor of Lender;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower Loan Party as the Administrative Agent Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Borrower Loan Party is a party;
(v) such 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 Loan Party is validly existing, in good standing standing/subsisting 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 Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably request;
(vii) 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;
(viii) a certificate signed by a Responsible Officer of AFG each Loan Party 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) the current Debt Ratings;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date Lender shall have been paidreceived and approved a favorable opinion of counsel to Loan Parties reasonably acceptable to Lender addressed to Lender, as to the matters set forth concerning the Loan Parties and the Loan Documents in form and substance reasonably satisfactory to Lender.
(c) Unless waived by the Administrative Agent, the Borrowers Lender shall have paid received and approved evidence that all fees, charges and disbursements of counsel insurance required to be maintained pursuant to the Administrative Agent Loan Documents, including flood insurance (directly if applicable) has been obtained and is in effect and that Lender has been named as insured mortgagee, lender loss payee and additional insured thereunder pursuant to such counsel if requested by the Administrative Agent) endorsements acceptable 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 Borrowers and the Administrative Agent)Lender.
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior all existing contracts, agreements, permits, budgets, plans and specifications related to the proposed Closing Date specifying its objection theretoNavy Yard Project and all existing purchase orders and agreements for purchase of the Navy Yard Equipment, and such items shall be reasonably satisfactory to Lender.
(e) Lender shall have received and approved the Navy Yard Lease and all existing construction budgets, plans, specifications, projections, timetables and other items contemplated thereunder, and such items shall be reasonably satisfactory to Lender.
Appears in 1 contract
Samples: Credit Agreement (Tasty Baking 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 having been metprecedent:
(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 each 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, any Security Documents required by Agent in addition to Existing Loan Documents and any other Loan Documents, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) if any Lender requests a Note, a Note executed by each Borrower in favor of each Lender requesting a Notesuch Lender;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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 Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably request;
(viiv) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivi) a certificate signed by a Responsible Officer of AFG Borrower certifying (A) that the conditions specified in Sections 4.02(a5.02(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) the current Debt Ratings;
(ixvii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(viii) a duly completed Compliance Certificate for of Borrower as of September 30, 2010 calculated based on the period ending December 31, 2005financial covenants contained in this Agreement, signed by a Responsible Officer of AFGBorrower;
(ix) evidence that all filings, registrations and recordings have been made in the appropriate governmental offices, and all other action has been taken, which shall be necessary to create, in favor of Agent, a perfected first priority Lien on the Collateral;
(x) evidence that the Indebtedness outstanding under the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with Indebtedness of 2110 Davie under its existing $1,991,800 real estate loan will be refinanced on the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in fullDate;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries receipt of true, correct and Affiliates to which each Borrower has any Indebtednesscomplete copies of the Closing Date Product Acquisition Agreements; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent, the Administrative Agent L/C Issuer or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement (including under the Agent Fee Letter) 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 the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of Section 9.0410.04, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or 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 or waiver of the following conditions precedent having been metprecedent:
(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 each 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, Agreement sufficient in number for distribution to the Administrative Agent, each Lender and each the Lead Borrower;
(ii) a Note executed by each Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party or is to become a party;
(viv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable legal opinion of Xxxxxxx, Xxxxxxxx Xxxxxx & XxxxxxxBird, counsel to the Loan Parties, and the General Counsel of the Lead Borrower, in each case, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(vii) 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;
(viiivi) a certificate signed by a Responsible Officer of AFG the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and , (C) to the current Debt RatingsSolvency 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;
(ixvii) a duly completed Compliance Certificate for as of the period ending December 31, 2005last 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 AFGthe Lead Borrower;
(xviii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from each of the agents for the lenders under the Existing AFG Credit Agreement Agreements reasonably satisfactory in form and substance to the Administrative Agent evidencing that the Existing GAFRI Credit Agreement Agreements have been or concurrently with the Closing Date are being terminated and terminated, all outstanding fees and interest related thereto have been obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Credit Agreements have been or concurrently with the Closing Date are being released;
(x) each Security Document set forth on Schedule 4.01(a) required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party party thereto 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) subject to Section 6.21, all other Loan Documents, each duly executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; andthe applicable Loan Parties;
(xii) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Administrative Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Administrative Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Administrative Agent;
(xiii) results of searches or other evidence reasonably satisfactory to the Administrative Agent (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 discharges of any Mortgages, and releases or subordination agreements reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other assurancesarrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases, certificatessatisfactions and discharges have been made;
(A) all documents and instruments, documentsincluding Uniform Commercial Code financing statements and PPSA filings, consents required by law or opinions reasonably requested by the Administrative 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 will be filed, registered or recorded to the satisfaction of the Administrative Agent promptly upon the payment of amounts owing under the Existing Credit Agreements as set forth in the payoff letter referred in clause (ix) above, (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 Administrative Agent;
(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 $20,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on September 30, 2012, and executed by a Responsible Officer of the Lead Borrower.
(d) The Administrative Agent shall have received the Audited Financial Statements.
(e) The Administrative Agent shall have received and be satisfied with (i) a detailed annual forecast for the period commencing on the Closing Date and ending with the end of the 2013 Fiscal Year, which shall include an Excess Availability model, Consolidated income statement, balance sheet, and statement of cash flow, (ii) a detailed forecast for the period commencing on the Closing Date and ending with the end of the 2013 Fiscal Year, which shall include an Excess Availability model, Consolidated income statement, balance sheet and statement of cash flow, by month (iii) any updates to the projections described in clauses (i) and (ii), in each case in form and substance reasonably satisfactory to Administrative Agent, and (iv) copies of interim unaudited financial statements for each quarter and month since the date of the Audited Financial Statements, in each case of the foregoing clauses (i) through (iv), prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices.
(f) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(g) To the extent the following have been invoiced at least two (2) Business Days prior to the Closing Date, all fees required to be paid to the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid Arranger on or before the Closing Date shall have been paidpaid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(ch) Unless waived by the Administrative Agent, the 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 at least two (2) Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that provided, that, such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(di) The Administrative Agent shall have received all documentation and other information reasonably requested in writing at least five (5) Business Days prior to the Closing Date shall have occurred on or before April 15in order to allow the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, 2006including without limitation the Patriot Act. 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 Consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented 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 having been metprecedent:
(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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party or is to be a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion opinions of Xxxxxxx, Xxxxxx Xxxxxxx Xxxxxxxx & XxxxxxxXxxxxx, Professional Corporation, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F and such other matters concerning AFG and its Subsidiaries the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of 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 current Debt Ratings;
(ixviii) a duly completed Compliance Certificate for as of the period ending December 31, 2005last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date, signed by a Responsible Officer of AFGthe Borrower;
(ix) certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall request;
(x) receipt of pro forma corporate ratings for the Borrower and Ratings on the Facilities from each of Moody’s and S&P;
(xi) receipt of confirmation that all continuing public indebtedness of KR and its subsidiaries will, after giving effect to the Merger, be an obligation of the Borrower;
(xii) receipt of confirmation that the Merger will be consummated in accordance with the Merger Agreement without any amendment or modification of any material provision of the Merger Agreement (except with the consent of the Administrative Agent and the Syndication Agent and except with respect to any amendment or modification that does not materially and adversely affect the interests of the Arrangers, the Administrative Agent, the Syndication Agent or the Lenders);
(xiii) receipt of confirmations that all conditions precedent to the consummation of the Merger have been satisfied or if waived, such waivers do not materially and adversely affect the interests of the Arrangers, the Administrative Agent, the Syndication Agent or the Lenders or the Administrative Agent and the Syndication Agent shall have consented to such waivers;
(xiv) evidence that the Existing AFG Credit Agreement and the Existing GAFRI KR Credit Agreement Agent have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto Liens securing obligations thereunder have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednessor concurrently with the Closing Date are being released; and
(xiixv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) There shall not have occurred a Company Material Adverse Effect (as defined in the Merger Agreement).
(e) The Closing Date shall have occurred on or before April 15September 30, 2006. Without limiting ; provided, however, this date will be extended if the generality of End Date (as defined in the Merger Agreement) is extended pursuant to the provisions of Section 9.04, for purposes 7.1(b) of determining compliance with the conditions specified Merger Agreement (but in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory no event to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretodate later than December 31, 2006).
Appears in 1 contract
Samples: Credit Agreement (McClatchy Co)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender Lender, including without limitation, the UK Lender, to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each 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 Agreementthe Loan Documents, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrower and each of its Subsidiaries 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;
(viv) a favorable opinion of XxxxxxxXxxxxxx Xxxxxx Xxxxxx and Dodge, Xxxxxxxx & XxxxxxxLLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as in form and substance satisfactory to the Administrative Agent addressing such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;; 4019304v5
(viiivii) a certificate signed by a Responsible Officer of AFG the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (bQ) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements June 30, 2005 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the current Debt RatingsConsolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(ixviii) a duly completed Compliance Certificate for as of the period ending December 31last day of the fiscal quarter of the Borrower ended on September 30, 2005, signed by a Responsible Officer of AFGthe Borrower;
(xix) evidence that all insurance required to be maintained pursuant to the Existing AFG Credit Agreement Loan Documents has been obtained and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid is in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednesseffect; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the UK Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Cross a T Co)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each 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, the Guaranty and all Collateral Documents covering all assets of Borrower, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications certificates as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, formed and that each Loan Party is Borrower is, validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan PartiesParties acceptable to Agent, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestDocuments;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 Initial Financial Statements that has had or could reasonably be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; and (C) the current Debt Ratings;
(ixb) a duly completed Compliance Certificate for Agent shall have received evidence that all insurance required to be maintained pursuant to the period ending December 31, 2005, signed by a Responsible Officer of AFGLoan Documents has been obtained and is in effect;
(xc) evidence Agent shall have received evidence, satisfactory to Agent in its sole discretion, that as of the Existing AFG Credit Agreement execution, delivery, filing and recording of the Existing GAFRI Credit Agreement have been or concurrently with Collateral Documents, Agent shall hold a perfected, first priority Lien in all Collateral for the Closing Date are being terminated Loan, except to the Collateral subject to the Texaco Lien which will be in an inferior and all outstanding fees and interest related thereto have been paid in fullsubordinate position to such Lien;
(xid) executed Subordination Agreement by each Borrower’s Subsidiaries Agent shall have received the results of a Uniform Commercial Code search showing all financing statements and Affiliates other documents or instruments on file against the Borrower in the Offices of the Secretary of State of the State of Delaware, such search to which each Borrower has any Indebtednessbe as of a date no more than ten days prior to the date of Closing; and
(xiie) The Administrative Agent and the Lenders shall have been, and shall continue to be, satisfied, in their good faith discretion, that the Borrower holds Marketable Title to the Borrowing Base Oil and Gas Properties, and that such other assurancesownership includes record title to an undivided net revenue interest in the production from each such Borrowing Base Oil and Gas Property that is not less than, certificatesas well as an undivided working interest in each Borrowing Base Oil and Gas Property that is not greater than (unless there is a corresponding increase in the net revenue interest attributed to such party therein), documentsthe net revenue interest therein and the working interest therein, consents respectively, attributed to the Borrower on Exhibit B, subject to the limitations and qualifications on such exhibit (or opinions as attributed to Borrower in any Collateral Document applicable to any Oil and Gas Property that is added to the Borrowing Base Oil and Gas Properties in connection with any subsequent funding after the Closing Date); provided that, for purposes of closing, Administrative Agent and Lenders intend to have confirmed, to their satisfaction, the status of Borrower’s title to Borrowing Base Oil and Gas Properties comprising a minimum of seventy-five percent (75%) of the PW9 (based on the most recent Borrowing Base evaluation by the Administrative Agent) of the Proved Reserves that are attributable to those Borrowing Base Oil and Gas Properties; such determination by Administrative Agent or and the Required Lenders reasonably may requireLenders, however, shall not relieve Borrower from the ongoing obligation to comply with all of its representations, warranties and covenants herein and in the Collateral Documents regarding Borrower’s title to all Borrowing Base Oil and Gas Properties.
(bf) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(cg) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(dh) Agent shall have received, in form and substance reasonably satisfactory to it, such other assurances, certificates, documents or consents related to the foregoing as Agent or the Required Lenders reasonably may require.
(i) The Closing Date shall have occurred on or before April 15March 18, 2006. 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, 2005.
(ij) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to other assurances, certificates, documents, consents, evidence of perfection of all Liens securing the proposed Closing Date specifying its objection theretoObligations or opinions as Agent or the Required Lenders reasonably may require.
Appears in 1 contract
Samples: Secured Reducing Credit Agreement (Gulfport Energy Corp)
Conditions of Initial Credit Extension. The Except for the delayed delivery provided in Section 4.03, 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 having been metprecedent:
(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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and all Collateral Documents, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, Parties acceptable to Administrative Agent addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestin form and substance satisfactory to Administrative Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and (C) the current Debt Ratingsis in effect;
(ix) certified copies of Uniform Commercial Code search reports dated a duly completed Compliance Certificate for date reasonably near to the period ending December 31Closing Date, 2005listing all effective financing statements which name any Loan Party (under their present names and any previous names) as debtors, signed by a Responsible Officer together with (a) copies of AFG;
such financing statements, (xb) evidence that payoff letters evidencing repayment in full of all Indebtedness to be repaid, the Existing AFG Credit Agreement termination of all agreements relating thereto and the Existing GAFRI Credit Agreement have been release of all Liens granted in connection therewith, with Uniform Commercial Code or concurrently with other appropriate termination statements and documents effective to evidence the Closing Date are being terminated foregoing (other than Liens permitted by Section 7.01) and all outstanding fees and interest related thereto have been paid in full;
(xic) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednesssuch other Uniform Commercial Code termination statements as Administrative Agent may reasonably request; and
(xiix) such other assurances, certificates, documents, consents or opinions as Administrative Agent, the Administrative Agent L/C Issuer, Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15December 18, 20062014. Without limiting the generality of the provisions of the last sentence of Section 9.049.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Celadon Group 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 having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies pdf copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each 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 AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note Notes executed by each the Borrower in favor of each Lender requesting a NoteNotes;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrower and the Trust is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, 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 AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; Effect and (C) a calculation of the current Debt RatingsConsolidated Leverage Ratio as of the last day of the fiscal quarter for which financial statements have been publicly filed prior to the Closing Date;
(ixviii) a duly completed Compliance Certificate for as of the period ending December 31last day of the fiscal quarter of the Borrower ended on September 30, 20052018, signed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xiiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may reasonably require.
(bi) 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 five (5) days prior to the Closing Date and (ii) at least five (5) days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, then the Borrower shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to the Borrower.
(c) Any fees related to this Agreement required to be paid to the Administrative Agent or any Lender in connection with this Agreement or the Fee Letter on or before the Closing Date shall have been paid.
(cd) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date that is three 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit and Term Loan Agreement (Black Creek Diversified Property Fund 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 having been metprecedent:
(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 each 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, sufficient in number for distribution to the Administrative each Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party or is to be a party;
(viv) 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 Loan Party is validly existing, existing and in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & XxxxxxxXxxxx Day, counsel to the Loan Parties, addressed to the Co-Administrative Agent Agents and each Lender, as in form and substance reasonably satisfactory to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably requestCo-Administrative Agents;
(viivi) a certificate of a Responsible Officer of each the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower any Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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; and (C) the current Debt Ratings;
(ixviii) a duly completed Compliance Certificate for certificate attesting to the period ending December 31Solvency of the Borrower and its Subsidiaries on a consolidated basis, 2005after giving effect to the consummation of the transaction contemplated hereby, signed by a Responsible Officer of AFG;
(x) evidence that from the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries Chief Financial Officer or Executive Vice President-Finance and Affiliates to which each Borrower has any IndebtednessAdministration; and
(xiiix) such other assurances, certificates, documents, consents or opinions as the Co-Administrative Agent or the Required Lenders Agents may reasonably may require.
(b) Any All fees related to this Agreement required to be paid by the Borrower in connection with the Loan Documents on or before the Closing Date shall have been paidpaid in full.
(c) Unless waived by All accrued reasonable expenses of the Co-Administrative AgentAgents and the Lenders, including, without limitation, Attorney Costs for which 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 Borrower has received a reasonably detailed invoice at least 5 days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent)have been paid in full.
(d) The Closing Date shall have occurred on absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in any court or before April 15, 2006. 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 any arbitrator or Governmental Authority that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement could reasonably be expected to materially and adversely affect the Schedules Borrower and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or its Subsidiaries, (ii) purports to adversely affect the ability of the Borrower or any other matter required thereunder Loan Party to be consented perform their respective obligations under the Loan Documents, or (iii) purports to affect the legality, validity or approved by enforceability of any Loan Document.
(e) There shall not have occurred a material adverse change in the business, assets, liabilities (actual or acceptable contingent), operations or satisfactory to condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretowhole since December 31, 2010.
Appears in 1 contract
Samples: Credit Agreement (Timken Co)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension Loan hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each 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 AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFGPledge Agreements with respect to all Equity Interest Collateral;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrower and Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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 favorable opinion of Jaffe, Raitt, Heuer and Xxxxx, P.C., counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit E and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) a certificate signed by a Responsible Officer of AFG the Borrower certifying (A) that the conditions specified in Sections 4.02(a5.02(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 current Debt RatingsLeverage Ratio as of September 30, 2012;
(ix) a duly completed Compliance Certificate for as of the period ending December 31last day of the fiscal quarter of the Borrower ended on September 30, 20052012, signed by a Responsible Officer of AFGthe Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Existing AFG Credit Agreement Loan Documents has been obtained and is in effect;
(xi) evidence that all Liens (other than Liens securing the Existing GAFRI Credit Agreement Loans) encumbering all Equity Interest Collateral and any Borrowing Base Property have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednessreleased; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each 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 Collateral Document and each Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedformed including certified copies of each Loan Party's Organization Documents, and that 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; and, to the extent generally available, a certificate or other evidence of good standing as to payment of any applicable franchise or similar taxes from the appropriate taxing authority of each of such states, each dated a recent date prior to the Closing Date;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, Parties acceptable to Agent addressed to the Administrative Agent and each Lender, as to the matters set forth concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestin form and substance satisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG Borrower certifying (A) that the conditions specified in Sections 4.02(a4.2(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) the current Debt RatingsBorrower has performed in all material respects all agreements and satisfied all conditions which this Agreement provides shall be performed or satisfied by it on or before the Closing Date;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a duly completed Compliance Certificate for dated as of the period ending December 31, 2005Closing Date, signed by a Responsible Officer of AFGBorrower;
(x) evidence that all commitments under the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated terminated, and all outstanding fees amounts thereunder paid in full and interest related thereto all Liens securing obligations under the Existing Credit Agreement have been paid in fullor concurrently with the Closing Date are being released;
(xi) within 30 days after the Closing Date, (i) the Foreign Pledge Agreements and related documents; (ii) originally executed Subordination Agreement by each Borrower’s Subsidiaries copies of the favorable written opinion of Gorissen Xxxxxxxxxx Kierkegaard, in form and Affiliates substance reasonably satisfactory to which each Borrower has any IndebtednessAgent and its counsel, setting forth the opinion that, under Danish law, the pledge of the shares of Oakley Denmark as Collateral is perfected and enforceable, and as to such other matters as Agent acting on behalf of Lenders may reasonably request; and (iii) originally executed copies of the favorable written opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, in form and substance reasonably satisfactory to Agent and its counsel, setting forth the opinion that, under French law, the pledge of the ownership interest in the ORAs as Collateral is perfected and enforceable, and as to such other matters as Agent acting on behalf of Lenders may reasonably request; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent, the Administrative Agent L/C Issuer, Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15August 31, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto2004.
Appears in 1 contract
Samples: Credit Agreement (Oakley 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 having been metprecedent:
(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 each 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 Guarantee and Collateral Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party or is to be a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrower and 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;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & XxxxxxxArent Fox LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of 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) true, correct and (C) the current Debt Ratingscomplete copies of all Material Bond Indemnity Agreements;
(ix) a duly completed Compliance Certificate for evidence that all insurance required to be maintained pursuant to the period ending December 31Loan Documents has been obtained and is in effect, 2005together with the certificates of insurance, signed by a Responsible Officer naming the Administrative Agent, on behalf of AFGthe Secured Parties, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral;
(x) 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 Collateral Documents as a first priority Lien (subject only to Permitted Liens) 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 Collateral Documents 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 all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(xi) Uniform Commercial Code search results showing only those Liens as are acceptable to the Administrative Agent;
(xii) evidence that the Existing AFG Credit Agreement all Indebtedness of the Borrower, any Guarantor and their Subsidiaries existing on the Closing Date (including without limitation the Existing GAFRI Credit Agreement Agreement) has been repaid or cancelled, all documentation representing such Indebtedness shall have been terminated and all Guarantees, Liens and security interests associated therewith have been released, or that reasonably adequate measures have been or concurrently with the Closing Date are being terminated taken to terminate such documentation and all outstanding fees release such Guarantees, Liens and interest related thereto have been paid in full;
(xi) executed Subordination Agreement security interests, except as otherwise agreed by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any IndebtednessAdministrative Agent; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders any Lender reasonably may require.
(bi) Any All fees related to this Agreement required to be paid to the Administrative Agent and the Arranger on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of the last paragraph of Section 9.048.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each 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 Lendersits legal counsel:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications certificates as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, formed and that Borrower and each Loan Party is Guarantor is, validly existing, existing and in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan PartiesParties acceptable to Agent, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably requestin form and substance satisfactory to Agent;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 reasonably be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; , and (C) a calculation of the current Debt Ratingsfinancial covenants set forth in Section 7.12 as of the last day of the fiscal quarter of Borrower ended March 30, 2013;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG commitments under the Credit Agreement dated as of June 13, 2011, as amended or modified, among Borrower, JPMorgan Chase Bank, N.A., as agent and a syndicate of lenders (the “Existing GAFRI Credit Agreement Agreement”) have been or concurrently with the Closing Date are being terminated terminated, and that all outstanding fees loans and interest related thereto obligations thereunder have been paid in full;
full (xiexcept to the extent being so repaid with the initial Loans) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednessand all liens thereunder shall have been terminated; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension Loan hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(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 each 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 AgreementAgreement and the Subsidiary Guarantee, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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 Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably request;
(viiv) a certificate of a Responsible Officer of each the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with (1) the Fluent Acquisition and (2) the execution, delivery and performance by such Borrower each Loan Party and the validity against such Borrower 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 or, (B) in either case, stating that no such consents, licenses or approvals are so required;
(viiivi) a certificate signed by a Responsible Officer of AFG the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) this Section 4.01 have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(ixvii) a duly completed Compliance Certificate for evidence that all insurance required to be maintained pursuant to the period ending December 31, 2005, signed by a Responsible Officer of AFGLoan Documents has been obtained and is in effect;
(xviii) evidence that a Solvency Certificate executed by the Existing AFG Credit Agreement and chief financial officer of the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xiiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid 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 the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Ansys Inc)
Conditions of Initial Credit Extension. The obligation of each the Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(a) The Administrative AgentLender’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 each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent Lender and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, the Fee Letter, the Guaranty and the Pledge Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) if requested by the Lender, a Note executed by each Borrower in favor of each Lender requesting a Notethe Borrower;
(iii) original certificates, if applicable, representing the AFG Guarantyequity interests of the Pledged Subsidiaries under the Pledge Agreement, duly and undated assignments separate from certificate, executed by AFGin blank, relating to such original certificates;
(iv) evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Lender may deem necessary or desirable in order to perfect the Liens created thereby,
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower Loan Party as the Administrative Agent Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Borrower Loan Party is a party;
(vvi) such documents and certifications as the Administrative Agent Lender may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and 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;
(vii) completed requests for information as the Lender may reasonably require, dated on or before the date hereof, listing all effective financing statements or other Liens filed in the jurisdictions referred to in clause (vi) above that show any Loan Party as debtor, together with copies of such other financing statements and other Liens;
(viii) a favorable opinion of Xxxxxxx, Xxxxxxxx O’Melveny & XxxxxxxXxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Lender may reasonably request;
(viiix) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiix) a certificate signed by a Responsible Officer of AFG the Borrower certifying (A) that the conditions specified in Sections 4.02(a), (b) and (bc) have been satisfied, ; and (B) that there has been no event or circumstance since the date of the Audited Financial Statements June 28, 2009 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;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and Affiliates to which each Borrower has any Indebtednessis in effect;
(xii) [Intentionally omitted]; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders Lender reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date as set forth in the fee Letter shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers The Borrower shall have paid all fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative AgentLender).
(d) [Intentionally omitted.]
(e) The Closing Date shall have occurred on or before April 15October 5, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto2009.
Appears in 1 contract
Samples: Credit Agreement (Microsemi 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 having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies pdf copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each 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 AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each the Borrower;
(ii) a Note executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrower and the Trust is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxx, 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 AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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 would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; Effect and (C) a calculation of the current Debt RatingsConsolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(ixviii) a duly completed Compliance Certificate for as of the period ending December 31last day of the fiscal quarter of the Borrower ended on June 30, 20052012, signed by a Responsible Officer of AFGthe Borrower;
(xix) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have has been or concurrently with the Closing Date are is being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednessterminated; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may reasonably require.
(b) Any fees related to this Agreement required to be paid to the Administrative Agent or any Lender in connection with this Agreement on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date that is three 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The effectiveness of this Agreement and 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 having been metprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies pdf copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrowerthe Borrower and executed counterparts of the Advisor Fee Subordination Agreement;
(ii) a Note Notes executed by each the Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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 qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectformation;
(viv) a favorable opinion of Xxxxxxx, Xxxxxxxx & XxxxxxxXxxxx Xxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower 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;
(viiivii) a certificate signed by a Responsible Officer of AFG 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; , and (C) that, after giving effect to all requested Credit Extensions to be made on the current Debt RatingsClosing Date, the Total Outstandings shall not exceed the Borrowing Base as of the Closing Date;
(ixviii) a duly completed Compliance Certificate for as of the period ending December last day of the fiscal quarter of the Borrower ended on March 31, 20052011, signed by a Responsible Officer of AFGthe Borrower;
(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 AFG Borrowing Base Revolving Line of Credit Agreement dated as of January 6, 2010, by and among the Borrower and certain subsidiaries and affiliates thereof, as the borrowers thereunder, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent (the “Existing JPM Credit Agreement”), has been or concurrently with the Closing Date is being terminated, all amounts owing thereunder have been paid in full and all Liens securing obligations under the Existing GAFRI Credit JPM Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtednessreleased; and
(xiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers 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 Borrowers Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Cole Credit Property Trust III, Inc.)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been met: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 each 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 Lendersits legal counsel:
(i) executed counterparts of this Agreement, the Guaranties, and the Security Documents with respect to the Initial Borrowing Base Properties, sufficient in number for distribution to the Administrative Agent, each Lender Lender, and each Borrower;
(ii) a Note executed by each Borrower in favor of each Lender requesting a Note;
(iii) the AFG Guaranty, duly executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates certificates, and/or other certificates of Responsible Officers of each Borrower Loan Party as the Administrative Agent may require evidencing the identity, authority 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 Borrower Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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 could not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of XxxxxxxLowndes, Xxxxxxxx Drosdick, Doster, Kxxxxx & XxxxxxxRxxx, P.A., counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, and such other local counsel opinions as Administrative Agent shall request, as to the such matters concerning AFG and its Subsidiaries the Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(viivi) a certificate of a Responsible Officer of each Borrower Loan Party (other than Borrower) either (A) attaching copies of all consents, licenses licenses, and approvals required in connection with the execution, delivery and performance by such Borrower Loan Party and the validity against such Borrower Loan Party of the Loan Documents to which it is a party, and such consents, licenses licenses, and approvals shall be in full force and effect, or (B) stating that no such consents, licenses licenses, or approvals are so required;
(vii) completed and executed Compliance Certificate and Borrowing Base Report, each dated as of June 30, 2005;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) unless otherwise agreed or approved by Administrative Agent, (A) two (2) prints of an original survey of each Initial Borrowing Base Property and improvements thereon dated not more than sixty (60) days prior to the date of this Agreement (or dated such earlier date, if any, as is satisfactory to Administrative Agent and the Title Company, but in any event not more than one hundred eighty (180) days prior to the date of this Agreement) and otherwise complying with Exhibit H to the extent required by Administrative Agent and the Title Company; and (B) a flood insurance policy in an amount required by Administrative Agent, but in no event less than the amount sufficient to meet the requirements of applicable law and the Flood Disaster Protection Act of 1973, or evidence satisfactory to Administrative Agent that none of the Initial Borrowing Base Properties are located in a flood hazard area;
(x) unless otherwise agreed or approved by Administrative Agent, true and correct copies of all existing Plans with respect to the Initial Borrowing Base Properties within the possession or control of the Loan Parties or any Operating Lessee which is an Affiliate of a Loan Party (including the site plan) requested by Administrative Agent, together with evidence satisfactory to Administrative Agent that the same comply in all material respects to applicable requirements of Governmental Authorities;
(xi) with respect to each Initial Borrowing Base Property: (A) true and correct copies of each material Lease (other than the Operating Leases and Ground Leases), and Guarantees thereof; (B) estoppel certificates and subordination and attornment agreements (including nondisturbance agreements if and to the extent agreed by Administrative Agent in its discretion), dated within thirty (30) days prior to this Agreement and in form and content satisfactory to Administrative Agent, from the tenants and subtenants as Administrative Agent requires; and (C) evidence of Borrower’s or the applicable Loan Party’s compliance with each Lease delivered pursuant to clause (A) above;
(xii) evidence satisfactory to Administrative Agent that no portion of any Initial Borrowing Base Property is “wetlands” under any applicable Law and no Initial Borrowing Base Property contains nor is within or near any area designated as a hazardous waste site by any Governmental Authority, that no Initial Borrowing Base Property or any adjoining property contains or has ever contained any Hazardous Material under any Law pertaining to health or the environment, and that no Initial Borrowing Base Property or any use or activity thereon violates or is or could be subject to any response, remediation, clean-up, or other obligation under any Law pertaining to health or the environment including without limitation, a written report of an environmental assessment of each Initial Borrowing Base Property, made within thirty (30) days prior to the date of this Agreement, by an engineering firm, and of a scope and in form and content satisfactory to Administrative Agent, complying with Administrative Agent’s established guidelines, showing that there is no evidence of any Hazardous Material which has been generated, treated, stored, released, or disposed of in any Initial Borrowing Base Property, and such additional evidence as may be required by Administrative Agent. All reports, drafts of reports, and recommendations, whether written or oral, from such engineering firm shall be made available and communicated to Administrative Agent;
(A) evidence that each Initial Borrowing Base Property abuts and has fully adequate direct and free access to one or more public streets, dedicated to public use, fully installed and accepted by the appropriate Governmental Authority, that all fees, costs and expenses of the installation and acceptance thereof have been paid in full, and that there are no restrictions on the use and enjoyment of such streets which would adversely affect such Initial Borrowing Base Property; (B) evidence that all applicable zoning ordinances, restrictive covenants, and Laws affecting each Initial Borrowing Base Property permit the use for which such Initial Borrowing Base Property is intended and have been or will be complied with without the existence of any variance, non-complying use, nonconforming use or other special exception; (C) evidence that each Initial Borrowing Base Property and Improvements comply and will comply with all Laws regarding subdivision and platting and would so comply if such Initial Borrowing Base Property and the Improvements thereon were conveyed as a separate parcel; and (D) evidence of compliance by Borrower and each Initial Borrowing Base Property, and any proposed construction, use and occupancy of the Improvements, with such other applicable Laws as Administrative Agent may request, including all Laws regarding access and facilities for handicapped or disabled persons including, without limitation and to the extent applicable, The Federal Architectural Barriers Act (42 U.S.C. § 4151 et seq.), The Fair Housing Amendments Act of 1988 (42 U.S.C. § 3601 et seq.), The Americans With Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), The Rehabilitation Act of 1973 (29 U.S.C. § 794), and any applicable state requirements;
(xiv) evidence (A) of the identity of all taxing authorities and utility districts (or similar authorities) currently exercising ad valorem or real property taxing or assessment jurisdiction over any Initial Borrowing Base Property or any portion thereof; (B) that all taxes, standby fees and any other similar charges have been paid, including copies of receipts or statements marked “paid” by the appropriate authority; and (C) that each Initial Borrowing Base Property is a separate tax lot or lots with separate assessment or assessments of the Initial Borrowing Base Property and Improvements, independent of any other Initial Borrowing Base Property or improvements and that each Initial Borrowing Base Property is a separate legally subdivided parcel;
(xv) executed, acknowledged, and/or sworn to as required counterparts of the Mortgages, which shall have been delivered to the Title Company and released for recordation in the official records of the city or county in which each Initial Borrowing Base Property is located, and UCC-1 financing statements which shall have been furnished for filing in all filing offices that Administrative Agent may require;
(xvi) a Title Policy or a Title Commitment for such Title Policy (or a title insurance policy promulgated by the Laws of the state in which each respective Initial Borrowing Base Property is located if an ALTA insurance policy is not available), in the amount of the Aggregate Commitments plus any other amount secured by the applicable Mortgage. Borrower and Borrower’s counsel shall not have any interest, direct or indirect, in the Title Company (or its agent) or any portion of the premium paid for the Title Insurance;
(A) evidence that immediately prior to the Closing Date and as of the time the Mortgages will be filed for record: (1) no contract, or memorandum thereof, for construction, design, surveying, or any other service relating to any Initial Borrowing Base Property has been filed for record in the county where such Initial Borrowing Base Property is located; and (2) no mechanic’s or materialman’s Lien claim or notice, lis pendens, judgment, or other claim or encumbrance against such Initial Borrowing Base Property has been filed for record in the county where the Initial Borrowing Base Property is located or in any other public record which by Law provides notice of claims or encumbrances regarding such Initial Borrowing Base Property; (B) a certificate signed or certificates of a reporting service acceptable to Administrative Agent, reflecting the results of searches made not earlier than forty-five (45) days prior to the date of this Agreement, (1) of the central and local Uniform Commercial Code records, showing no filings against any of the collateral for the Obligations or against Borrower otherwise except as consented to by Administrative Agent; and (2) if required by Administrative Agent, of the appropriate judgment and tax Lien records, showing no outstanding judgment or tax Lien against Borrower;
(xviii) to the extent reasonably deemed necessary by Administrative Agent, an executed REA estoppel letter from each party to any REA for any applicable Initial Borrowing Base Property;
(xix) a Responsible Officer true and correct copy of AFG certifying each Management Agreement with respect to each Initial Borrowing Base Property;
(xx) a true and correct copy of (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedeach Franchise Agreement, 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) the current Debt Ratingseach Operating Lease;
(ixxxi) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer an Acceptable Appraisal of AFGeach Initial Borrowing Base Property;
(xxxii) evidence that the Existing AFG Credit Agreement a true and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by correct copy of each Borrower’s Subsidiaries and Affiliates to which each Borrower has any IndebtednessGround Lease; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid 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 the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. 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, (i) this Agreement and the Schedules and Exhibits attached hereto and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
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Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent having been metprecedent:
(ai) The Administrative Agent’s (or its counsel’s) receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of each the signing Loan PartyParty (as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement, sufficient in number for distribution Agreement (or written evidence satisfactory to the Administrative Agent, each Lender and each BorrowerAgent (which may include a facsimile or other electronic transmission) that such party has signed a counterpart);
(ii) a Note executed by each the Borrower in favor of each Lender requesting a NoteNote to the extent such Lender requests such Note at least three Business Days prior to the Closing Date;
(iii) a certificate dated the AFG Guaranty, duly Closing Date and executed by AFG;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each 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 Borrower is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, 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 Xxxxxxx, Xxxxxxxx & Xxxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning AFG and its Subsidiaries and the Loan Documents as the Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of each Borrower either of the Loan Parties, certifying (AA)(x) attaching copies that attached thereto is a true and complete copy of all consentsthe articles or certificate of incorporation or other comparable organizational documents of such Loan Party, licenses certified by the relevant authority of the jurisdiction of organization of such Loan Party and approvals required in connection with a true and complete copy of the bylaws, operating or comparable governing document of such Loan Party, if applicable, and (y) that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and (B)(x) that attached thereto is a true and complete copy of resolutions or written consents of its shareholders or board of directors or other relevant governing body, as the case may be, authorizing the execution, delivery and performance by such Borrower of this Agreement and the validity against such Borrower of the other Loan Documents to which it is a party, and that such consentsresolutions or written consents have not been modified, licenses rescinded or amended and approvals shall be are in full force and effecteffect without amendment, modification or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of AFG certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedrescission, and (By) that there has been no event or circumstance since as to the date incumbency and genuineness of 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 current Debt Ratings;
(ix) a duly completed Compliance Certificate for the period ending December 31, 2005, signed by a Responsible Officer of AFG;
(x) evidence that the Existing AFG Credit Agreement and the Existing GAFRI Credit Agreement have been or concurrently with the Closing Date are being terminated and all outstanding fees and interest related thereto have been paid in full;
(xi) executed Subordination Agreement by each Borrower’s Subsidiaries and Affiliates to which each Borrower has any Indebtedness; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees related to this Agreement required to be paid 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 the Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 15, 2006. Without limiting the generality signature of the provisions officers, directors, managers or other authorized signatories of Section 9.04each Loan Party, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) executing this Agreement and the Schedules and Exhibits attached hereto and each other document Loan Documents to which it is a party or which it has reviewed or party.
(iiiv) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice a certificate as of a recent date of the good standing (or equivalent) of each of the Loan Parties under the laws of its jurisdiction of organization from such Lender prior the relevant authority of its jurisdiction of organization (solely to the proposed Closing Date specifying its objection thereto.extent such concept is applicable for the relevant jurisdiction);
(v) subject to the last paragraph of this Section 4.01, the legal opinion of Kxxxxxxx & Exxxx LLP, acting as special counsel for the Borrower, addressed to the Administrative Agent and each Lender and reasonably satisfactory to the Administrative Agent;
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