Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent: (a) Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the Lenders: (i) executed counterparts of this Agreement signed on behalf of each party to this Agreement; (ii) a Note executed by Borrower in favor of each Lender requesting a Note; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as 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 Borrower is a party; (iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws; (v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formed, and that 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 counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent; (vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; (ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date; (x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; (xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and (xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may require. (b) Without duplication of amounts described in clause (c) below, any fees required to be paid on or before the Closing Date shall have been paid. (c) Unless waived by Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).
Appears in 2 contracts
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a reasonably recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreement, the Collateral Administration Agreement, the Investment Management Agreement signed on behalf of and the Trust Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer of 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 the Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownershipthe State of Delaware;
(v) a favorable opinion of Xxxxxxxx Chance LLP, lease or operation of properties or the conduct of its business requires such qualification, except counsel to the extent that failure Borrower, addressed to do so could not the Administrative Agent and each Lender, as to the matters concerning the Borrower, the Investment Advisor, the Loan Documents and the Collateral as the Required Lenders may reasonably be expected to have a Material Adverse Effectrequest;
(vi) a favorable opinion of Xxxxxxx Xxxx & Xxxxxxx, Bermudan counsel to the Loan Parties acceptable to Agent Borrower, addressed to the Administrative Agent and each Lender, as to such matters concerning the matters set forth concerning Borrower and the Loan Documents in form and substance as the Required Lenders may reasonably satisfactory to Agentrequest;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) thatthere 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; [***] CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
(viii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by the Borrower and the validity against 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;
(viiiix) a certificate signed by a Responsible Officer of Borrower certifying (A) evidence satisfactory to the Administrative Agent in its sole discretion that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there Borrower has been no event or circumstance since the date a Net Asset Value of 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 Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and releasedat least $50,000,000; and
(xiix) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date that have been invoiced shall have been paid.
(c) Unless waived by the Administrative Agent, the 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, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent); provided, however, that such fees, charges and disbursements shall only be due and payable to the extent provided pursuant to Section 10.04.
(d) The representations and warranties of (i) the Borrower contained in Article V and (ii) the Borrower and Borrower Parent contained in each other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, (I) to the extent already qualified with respect to “material” matters or “Material Adverse Effect”, shall be true and correct on and as of the Closing Date and (II) to the extent not already qualified with respect to “material” matters or “Material Adverse Effect”, shall be true and correct in all material respects on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct (in all material respects, or as so qualified, as applicable) as of such earlier date.
(e) No Default shall exist, or would result from such Credit Extension or from the application of the proceeds thereof.
(f) The Administrative Agent and the Lenders shall have a valid and perfected first-priority lien and security interest in the Collateral as required under the Loan Documents, all filings, recordations and searches necessary or desirable in connection with the Collateral shallhave been duly made, and all filing and recording fees and taxes shall have been duly paid, including in each case under, and as required by, all applicable laws.
(g) All governmental and third party approvals necessary or, in the discretion of the Lender, advisable in connection with the Credit Extension shall have been obtained and be in full [***] CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the Lender making the Credit Extension.
(h) The initial Lender shall have received and reviewed all financial statements required to be delivered under Section 6.01 and, in each case, such financial statements shall be satisfactory to the initial Lender in its sole discretion. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a 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 (Watford Holdings Ltd.), Credit Agreement (Watford Holdings Ltd.)
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 precedenton or prior to the Closing Date:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to Agent and each of the LendersAdministrative Agent:
(i) executed counterparts of this Agreement signed on behalf of each party to this Agreement;
(ii) a Note executed by Borrower the Company in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) each Collateral Document set forth on Schedule 1.01A, duly executed by each Loan Party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) to the extent required under the Collateral and Guarantee Requirement, an opinion of local counsel for the Loan Parties in Iowa with respect to the enforceability and perfection of the Mortgage with respect to the Mortgaged Property in Iowa and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent;
(C) evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; and
(D) a completed Perfection Certificate dated the Closing Date and signed by the associate general counsel or the chief legal officer of the Company, together with all attachments contemplated thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) party or is to be a certificate of Borrower, dated party on the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-lawsDate;
(v) such documents and certifications as Agent may reasonably require opinion from (u) Cravath, Swaine & Xxxxx LLP, special New York counsel to evidence that Borrower is duly organized or formedHoldings substantially in the form of Exhibit H-1, and that Borrower is validly existing, in good standing and qualified to engage in business (v) local counsel in each jurisdiction where its ownershipof Iowa and Washington as may be reasonably required by the Administrative Agent, lease or operation of properties or the conduct of its business requires such qualification(w) Xxxxxxxx, 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 Xxxxxx & Finger, special Delaware counsel to the Loan Parties acceptable to Agent addressed to Agent substantially in the form of Exhibit H-2, and each Lender(x) Xxxxxxxx X.X. XxXxxx, as associate general counsel to the matters set forth concerning Borrower Company substantially in the form of Exhibit H-3, (y) Xxxxx X. Xxxxxxx, general counsel to WRC Media substantially in the form of Exhibit H-4, and (z) Xxxxxxxx X. Xxxxxx, general counsel to Direct Holdings substantially in the Loan Documents in form and substance reasonably satisfactory to Agentof Exhibit H-5;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 Borrower Holdings certifying that (A) that except as set forth (x) in the conditions specified Company Disclosure Letter (as defined in Sections 4.02(athe Purchase Agreement) or (y) in Reader’s Digest’s Annual Report on Form 10-K for the fiscal year ended June 30, 2006, filed with the SEC on August 21, 2006, Reader’s Digest’s Current Reports on Forms 8-K filed with the SEC on October 4, 2006 and October 5, 2006, Reader’s Digest’s proxy statement on Schedule 14A filed with the SEC on September 29, 2006, Reader’s Digest’s Registration Statement on Form S-8 filed with the SEC on August 21, 2006, and post-effective amendment thereto dated August 22, 2006, but excluding in each case under this clause (by) have been satisfiedany risk factor disclosures or other cautionary, (B) that predictive and forward looking disclosures contained in any such document under the heading “Risk Factors” or “Forward Looking Statements” or under any other heading, from June 30, 2006 to November 16, 2006, there has been no event state of facts, event, change, effect, development, condition or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to haveoccurrence that, either individually or in the aggregate, has had or could reasonably be expected to result in a Material Adverse Effect; Change, and (CB) except as set forth in the Company Disclosure Letter, since November 16, 2006, there has been no event, change, effect, development, condition or occurrence that, individually or in the aggregate, has had or could reasonably be expected to result in a Material Adverse Change;
(vii) a certificate signed by a Responsible Officer of Holdings certifying that since June 30, 2006 there has been no event, change, effect, development, condition or occurrence with respect to WRC Media, Direct Holdings or any of their respective subsidiaries that, individually or in the aggregate, has had, or would reasonably be expected to have a material adverse effect on the business, operations, property or financial condition of Reader’s Digest, WRC Media, Direct Holdings and their respective subsidiaries, taken as a whole.
(viii) a certificate (which shall be reasonably satisfactory to the Administrative Agent) attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the Treasurer of Holdings;
(ix) except as set forth in Section 6.17, evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to such liability and property insurance as to which the Administrative Agent shall have reasonably requested to be so named;
(ixx) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension; and
(xi) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently Company certifying compliance with the Closing Date will be, paid conditions set forth in full, discharged, paragraphs (a) and released; and
(xiib) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may requireof Section 4.02.
(b) Without duplication of amounts described in clause (c) below, any All fees and expenses required to be paid on or hereunder and invoiced before the Closing Date shall have been paidpaid in full in cash.
(c) Unless waived Prior to or substantially contemporaneously with the initial Credit Extension, (i) the Sponsor Equity Contributions shall have been funded in full in cash; and (ii) Acquisition Co shall have received (as a common equity capital contribution or, if otherwise, on terms and conditions reasonably satisfactory in all material respects to the Administrative Agent) cash proceeds from the Equity Contribution in an aggregate amount, when combined with (x) the aggregate value of the Company Preferred Stock that is rolled over in connection with the Transactions and (y) the value (which shall be calculated net of the fees and expenses of the Company in connection with the WRC Acquisition and the DH Acquisition in excess of $15,000,000) of the Equity Interests issued by Holdings to the shareholders of WRC Media and Direct Holdings as consideration for the WRC Acquisition and the DH Acquisition, respectively) is equal to at least 29% of the total capitalization of the Company.
(d) The Acquisition and the Merger shall be consummated in accordance with the terms of the Purchase Agreement without waiver or amendment of any material provisions thereof (other than any such waivers or amendments as are not, taken as a whole, materially adverse to the Lenders) unless consented to by the Administrative Agent, Borrower which consent shall not be unreasonably withheld, conditioned or delayed.
(e) The DH Acquisition shall be consummated in accordance with the terms of the DH Acquisition Agreement without waiver or amendment of any material provisions thereof (other than any such waivers or amendments as are not, taken as a whole, materially adverse to the Lenders) unless consented to by the Administrative Agent, which consent shall not be unreasonably withheld, conditioned or delayed. Holdings shall have contributed all of the Equity Interests of Direct Holdings to the Company.
(f) The WRC Acquisition shall be consummated in accordance with the terms of the WRC Acquisition Agreement without waiver or amendment of any material provisions thereof (other than any such waivers or amendments as are not, taken as a whole, materially adverse to the Lenders) unless consented to by the Administrative Agent, which consent shall not be unreasonably withheld, conditioned or delayed. Holdings shall have contributed all of the Equity Interests of WRC Media to the Company.
(g) Prior to or substantially contemporaneously with the initial Credit Extensions, the Company shall have received at least $600,000,000 in gross cash proceeds from the issuance of the Senior Subordinated Notes.
(h) Prior to or substantially contemporaneously with the initial Credit Extensions, Holdings shall have received at least $274,000,000 in gross cash proceeds from the issuance of the Holdings Senior PIK Preferred.
(i) Prior to or substantially contemporaneously with the initial Credit Extensions, Holdings shall have received at least $91,333,333.33 in gross cash proceeds from the issuance of the Holdings Common Equity.
(j) The Administrative Agent shall have received evidence reasonably satisfactory to it that all loans outstanding under the Existing Credit Agreement and the Existing DH/WRC Debt Agreements and all accrued and unpaid interest, fees and other amounts owing thereunder shall have been paid in full, all reasonable feescommitments to extend credit thereunder shall have terminated, charges and disbursements of counsel all Liens securing obligations thereunder shall have been released. A Successful Consent Solicitation or a Defeasance shall have been consummated. Except for (A) any Existing Notes not repurchased or redeemed on or prior to Agent the Closing Date, (directly B) Indebtedness listed on Schedule 7.03(b), (C) the Company Preferred Stock, (D) the Loans and L/C Obligations, (E) the Senior Subordinated Notes and (F) the Holdings PIK Preferred, Holdings, the Company and its Subsidiaries shall have no Indebtedness or preferred Equity Interests outstanding after giving effect to such counsel if requested by Agentthe Transaction.
(k) The Arrangers and the Lenders shall have received (i) the Audited Financial Statements, (ii) the Unaudited Financial Statements and (iii) to the extent invoicedmade available by each of Reader’s Digest, prior Direct Holdings and WRC Media, monthly financial data generated by each of Reader’s Digest’s, Direct Holdings’, and WRC Media’s internal accounting systems for use by senior management for each month ended after the latest fiscal quarter for which Unaudited Financial Statements are delivered pursuant to or on clause (ii) above and at least 30 days before the Closing Date, plus such additional amounts of such fees, charges .
(l) The Arrangers and disbursements as the Lenders shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through have received the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent)Pro Forma Balance Sheet.
Appears in 2 contracts
Samples: Credit Agreement (Readers Digest Association Inc), Credit Agreement (Direct Holdings Libraries 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 or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party on behalf 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 Agent the Agents and each of the LendersArrangers:
(i) executed counterparts of this Agreement signed on behalf of and the Guaranty, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a NoteNotes, evidencing the Committed Loans and the Term A Loans, as applicable;
(iii) a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent (the “Parent/Borrower Pledge Agreement”), executed by the Parent and the Borrower granting to the Administrative Agent, for the benefit of the Lenders, a first priority security interest in all of the issued and outstanding Equity Interests of the Borrower and in the other Collateral; and the Parent and the Borrower shall have delivered to the Administrative Agent all certificates, if any, evidencing such Equity Interests, all UCC-1s and all powers, duly endorsed in blank, with respect thereto, to the extent applicable; and the Parent and the Borrower shall have taken all such other actions as may be reasonably required by the Administrative Agent to effect the grant and first priority perfection of the Administrative Agent’s security interest in such Equity Interests;
(iv) a pledge agreement in form and substance reasonably satisfactory to the Administrative Agent (the “Subsidiary Pledge Agreement”), executed by each Restricted Subsidiary of the Parent and the Borrower necessary to pledge the Collateral not described in subsection (iii) preceding, for the benefit of the Lenders, a first priority security interest in all of the issued and outstanding Equity Interests of each Restricted Subsidiary owned by such Person; each such Restricted Subsidiary shall have delivered to the Administrative Agent all certificates, if any, evidencing such Equity Interests, all UCC-1s and all powers, duly endorsed in blank, with respect thereto; each such Restricted Subsidiary shall have taken all actions as may be required by the Administrative Agent to effect the grant and first priority perfection of the Administrative Agent’s security interest in such Equity Interests;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(vvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that Borrower each of the Borrower, the Parent 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;
(vivii) a favorable opinion of (A) Xxxxxx & Xxxxxxx, LLP, counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to the Administrative Agent and (B) FCC counsel to the Loan Parties, in each case dated the Closing Date, addressed to the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(viiviii) a certificate of a Responsible Officer of Borrower each Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiiix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Loan Documents has been obtained and is in effectClosing Date;
(xi) evidence that (A) all Indebtedness and all Liens amounts outstanding under the Existing Credit Agreement have been (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01or will be concurrently herewith) have been, or concurrently with the Closing Date will be, paid repaid in full, discharged(B) the Existing Credit Agreement and the other loan documents (as defined in the Existing Credit Agreement) shall have been (or are concurrently herewith) terminated, and (C) all collateral securing the obligations under the Existing Credit Agreement shall have been (or is concurrently herewith) released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, 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 invoice shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before July 16, 2007.
(e) There shall not have occurred a material adverse change (i) in the business, assets, properties, liabilities (actual or contingent), operations or financial condition of the Parent, the Borrower and their Subsidiaries, taken as a whole, since December 31, 2006 or (ii) in the facts and information regarding such entities as represented by the Parent, the Borrower or any of their Subsidiaries, or any representatives of any of them, to date.
(f) The absence of any action, suit, investigation or proceeding pending or, to the actual knowledge of a member of the executive management of the Parent, the Borrower or any of their Restricted Subsidiaries, threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to (i) have a material adverse effect on the business, assets, properties, liabilities (actual and contingent), operations or financial condition of the Parent, the Borrower and their Subsidiaries, taken as a whole, (ii) materially and adversely affect the ability of the Borrower or any Guarantor to perform its obligations under any material provision of the Loan Documents or (iii) materially and adversely affect the rights and remedies of the Agents or the Lenders under the Loan Documents. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Entercom Communications Corp), Credit Agreement (Entercom Communications 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, unless otherwise agreed to pursuant to a post closing agreement in form and substance satisfactory to the Administrative Agent in its discretion:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies electronically transmitted copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such duly executed counterparts of each other Loan Document sufficient in number for distribution to the Administrative Agent and the Borrower, together with:
(A) certificates representing the Pledged Equity referred to the Pledge Agreements accompanied by undated transfer powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as all jurisdictions that the Administrative Agent may reasonably require evidencing deem necessary in order to perfect the identityLiens created under the Security Agreement, authority covering the Collateral described in the Security Agreement,
(C) results of searches (including, without limitation, intellectual property and capacity lien searches), dated on or before the date of each Responsible Officer thereof authorized the initial Credit Extension, together with copies of such other supporting documentation as may be reasonably necessary or desirable showing that the Liens created by the Collateral Documents are the only Liens upon the Collateral, except Permitted Liens and Liens to act as a Responsible Officer be discharged on or prior to the Closing Date,
(D) evidence of the completion of or arrangements reasonably satisfactory to the Administrative Agent for all other actions, recordings and filings of or with respect to the Collateral Documents that the Administrative Agent may deem necessary in connection with this Agreement order to perfect the Liens on the Collateral; and
(E) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Pledge Agreements and the other Loan Documents to which Borrower is a party;Intellectual Property Security Agreements has been taken (including receipt of duly executed payoff letters, and UCC-3 termination statements).
(iv) a certificate of Borrower, dated the Closing Date and certificates executed by a Responsible Officer of Borrower, which shall (A) certify as to each Loan Party attaching resolutions of its board of directors, or other action authorizing the execution, delivery and performance of actions under the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documentsincumbency certificates, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority copies of the jurisdiction Organization Documents of organization of Borrower such Loan Party, in each case, certified to be true, accurate and a true complete and correct copy of its by-laws;
(v) in effect on the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that Borrower 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 each of (i) Weil, Gotshal, & Xxxxxx, LLP and (ii) McGuireWoods LLP, counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning Borrower the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request, in form form, scope and substance reasonably satisfactory to the Administrative Agent;
(viivi) a certificate of a Responsible Officer of Borrower each Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the consummation by such Loan Party of the Transaction and the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower certifying that (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 25, 2011 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; ;
(viii) a certificate of a Responsible Officer of the Borrower attaching the interim financial statements of Holdings and (C) all insurance required to be maintained pursuant its Subsidiaries for the period ended August 19, 2012, each reasonably satisfactory to the Loan Documents has been obtained and is in effectAdministrative Agent;
(ix) a certificate signed by a Responsible Officer Solvency Certificate from the chief financial officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing DateLoan Party;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with binding certificates of insurance and endorsements, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(xi) evidence that all Indebtedness the Existing Credit Agreement has been, or concurrently with the Closing Date is being, terminated and all Liens (other than Indebtedness permitted securing obligations under Section 7.02 and Liens permitted under Section 7.01) the Existing Credit Agreement have been, or concurrently with the Closing Date will beare being, paid in fullreleased;
(xii) an executed copy of a disbursement letter, discharged, and releasedexecuted by the Borrower; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders may reasonably may requirerequest.
(bi) Without duplication All fees (other than legal fees and expenses of amounts described in clause (ccounsel) below, any fees required to be paid to the Administrative Agent and the Lead Arranger on or before the Closing Date shall have been paidpaid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid (which may be offset from the initial Credit Extension on the Closing Date).
(c) Unless waived by Agent, The Borrower shall have paid all reasonable fees, charges accrued legal fees and disbursements expenses of counsel to the Administrative Agent and the Lead Arranger (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced at least three (3) days prior to or on the Closing DateDate (for the avoidance of doubt, a summary statement of such fees, charges and disbursements shall be sufficient documentation for the obligations set forth in this Section 4.01(c) provided that supporting documentation for such summary statement is provided promptly thereafter), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings Closing Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and counsel to the Administrative Agent).
(d) The Borrower shall have paid all accrued fees and expenses of the Administrative Agent and the Lead Arranger (other than the legal fees as set forth herein above) to the extent invoiced prior to or on the Closing Date.
(e) The Closing Date shall have occurred on or before October 31, 2012.
(f) After giving effect to the Transaction, including all Credit Extensions made in connection therewith, the amount by which the aggregate Revolving Credit Commitments exceeds the sum of (i) the Outstanding Amount of Revolving Credit Loans and Swing Line Loans and (ii) the Outstanding Amount of L/C Obligations shall be no greater than $7,500,000.
(g) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying that the Consolidated Total Lease Adjusted Leverage Ratio calculated as of the twelve month period ending August 19, 2012 and calculated on a Pro Forma Basis, including the initial funding of the Facility, does not exceed 5.10:1.00.
(h) Since December 25, 2011, there shall have been no event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Bojangles', Inc.), Credit Agreement (Bojangles', Inc.)
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:precedent (unless compliance is waived in accordance with Section 11.01):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies, faxes or telecopies scanned pdf files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of each party to this Agreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) the Security Agreement (General Partner), the Security Agreement (Parent and Subsidiaries), the General Partner Guaranty, the Subsidiary Guaranty, and all other Collateral Documents required by the Administrative Agent (including any amendments (including any amendments as may be necessary to reflect the increased amount of the Aggregate Commitment), modifications, restatements, confirmations, or reaffirmations of any “Collateral Documents” executed and delivered in connection with the Existing Credit Agreement, as the Administrative Agent may reasonably require, executed by the Loan Parties party thereto in appropriate form for recording, where necessary, together with evidence that such reasonable actions as are necessary, or in the opinion of the Administrative Agent or the Required Lenders desirable, to perfect the Administrative Agent’s Liens in the Collateral have been taken or arrangements therefor reasonably satisfactory to the Administrative Agent have been made;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party or is to be a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that Borrower 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 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;
(vi) a favorable opinion of Proskauer Rose LLP, counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower each Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; , and (C) that as of the Closing Date no Default (as defined in the Existing Credit Agreement) exists under the Existing Credit Agreement;
(ix) a certificate of the Borrower confirming that (A) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
, (ixB) a certificate signed by a Responsible Officer there are no past due premiums in respect of Borrower attesting any such insurance, (C) the Administrative Agent, on behalf of the Secured Parties, is named as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the Solvency assets and properties of the Loan Parties that constitute Collateral, and (D) all (1) standard flood hazard determination forms and, (2) if any property is located in a special flood hazard area, (x) notices to (and confirmations of receipt by) the Borrower both before as to the existence of a special flood hazard and, if applicable, the unavailability of flood hazard insurance under the National Flood Insurance Program and after giving effect to any Borrowing(y) evidence of applicable flood insurance, or the issuance of any Letters of Creditif available, in each casecase in such form, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 or as otherwise reasonably required by the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has Administrative Agent have been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and releaseddelivered; and
(xiix) such other assurances, certificatescertificates or documents as the Administrative Agent, documentsany L/C Issuer, consents the Swing Line Lender or opinions as Agent or the Required Lenders any Lender reasonably may require.
(bi) Without duplication of amounts described in clause (c) below, any All fees 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 Borrower shall have paid all reasonable fees, charges and disbursements of counsel (including local counsel) to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and Agentthe Administrative Agent or such counsel).
(d) The conditions precedent set forth in Section 4.02 shall have been satisfied. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender and the L/C Issuer and each Lender to make its any initial Credit Extension hereunder is subject to satisfaction or waiver by the applicable party of the following conditions precedent:
(a) Administrative Agent’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 the signing 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 reasonably satisfactory to Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts Uniform Commercial Code financing statements, suitable in form and substance for filing in all places required by applicable law to perfect the Liens of this Agreement signed on behalf Administrative Agent under the Security Instruments as a first priority Lien under U.S. law as to items of each party to this AgreementCollateral in which a security interest may be perfected by the filing of financing statements;
(ii) a Note executed by Borrower in favor of each Lender requesting a Notelegal opinion from Xxxxxxxx and Xxxxx LLP;
(iii) such the secretary’s certificates, borrowing request and closing certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower set forth on the closing checklist attached hereto as 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 Borrower is a partyExhibit G;
(iv) a solvency certificate in the form of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall Exhibit I; and
(Av) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, except for (Bi) identify the Guarantees by name the Guarantors and title and bear (ii) those items that are specifically permitted herein to be delivered after the signatures Closing Date
(b) with respect to the Borrowers, all amounts due or outstanding in respect of each officer authorized any Indebtedness of the Target (other than as permitted to sign remain outstanding under the Closing Date Acquisition Documents or the Loan Documents, ) and the Initial Borrower and its Subsidiaries have been (C) contain appropriate attachments, including or substantially simultaneously with the certificate or articles of incorporation Borrower certified by the relevant authority initial funding of the jurisdiction of organization of Borrower Loans on the Closing Date, will be) paid in full, all commitments (if any) in respect thereof terminated, all guarantees (if any) thereof discharged and a true released and correct copy of its by-laws;
all security therefor (vif any) released or documentation to effect such documents released upon such repayment and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formed, and that 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 termination have been delivered to the extent Administrative Agent; provided, that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion of counsel to notwithstanding the Loan Parties acceptable to Agent addressed to Agent and each Lenderforegoing, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third partiescertain lien filings, if any, required in connection with the executionU.S. Patent and Trademark Office or the U.S. Copyright Office, delivery as applicable, on Intellectual Property owned by Target and performance by Borrower and the validity against Borrower its Subsidiaries relating to such Indebtedness of the Loan Documents Target (the “Specified Lien Filings”) shall not be required to which it is a partybe removed on or prior to the Closing Date, and Borrowers shall have seven (7) days following the Closing Date (or such consents, licenses and approvals shall longer period as may be agreed by Administrative Agent in full force and effect, its sole discretion) to file (or (Bto have filed) stating that no such consents, licenses or approvals are so requiredthe appropriate documents to cause the Specified Lien Filings to be removed;
(viiic) a certificate signed by a Responsible Officer (x) the consummation of Borrower certifying (A) that the conditions specified incurrence of the Subordinated Indebtedness in Sections 4.02(a) and (b) have been satisfiedaccordance with the terms of the Subordinated Indebtedness Documents in an original aggregate principal amount not to exceed $40,000,000, (By) that there has been no event or circumstance since the date consummation of equity contributions by Sponsor and its co-investors (together with rollover equity contributions from the selling shareholders and management of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in Target) of not less than 35% of the aggregate, a Material Adverse Effect; total pro forma capital structure of the Initial Borrower and its Subsidiaries (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowingthe Transactions) and (z) the consummation of, or substantially simultaneously with, but after, the issuance initial funding of any Letters of Credit, in each case, Loans on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will beAcquisition in accordance with the terms of the Closing Date Acquisition Documents, paid without any waiver, amendment, supplement or other modification of any provision of the Purchase Agreement that is material and adverse to the Lenders unless the Administrative Agent and Arranger have consented thereto; provided, that (1) any reduction in fullthe purchase price for the Closing Date Acquisition set forth in the Purchase Agreement by less than fifteen percent (15%) is not material and adverse to the interests of the Lenders, discharged(2) any increase in the purchase price for the Closing Date Acquisition set forth in the Purchase Agreement is not material and adverse to the interests of the Lenders so long as any such purchase price increase is funded with the proceeds of equity contributions, proceeds of Revolving Loans or proceeds of the Subordinated Indebtedness (it being understood and released; and
agreed that no purchase price adjustments or similar adjustment provisions set forth in the Purchase Agreement constitute a reduction or increase in the purchase price of the Closing Date Acquisition for purposes of this proviso), (xii3) such other assurances, certificates, documents, consents the granting by Holdings of any consent under the Purchase Agreement that is not materially adverse to the interests of the Lenders shall not constitute an amendment or opinions as Agent or waiver for purposes of this clause (z) and (4) any change to the Required Lenders reasonably may requiredefinition of “Material Adverse Effect” in the Purchase Agreement shall be deemed materially adverse to the Lenders.
(bd) Without duplication of amounts described in clause All accrued costs, fees and expenses (c) below, any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid including all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Administrative Agent) to the extent invoiced, prior to or on the Closing Date, plus such additional amounts of such reasonable out-of-pocket fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable out-of-pocket fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower Borrowers and Administrative Agent) and the fees and expenses of any other advisors) and other compensation due and payable to Administrative Agent, the Arranger and the Lenders on or before the Closing Date shall have been paid (or deducted from the initial funding of the Loans hereunder), to the extent set forth in the Fee Letter or otherwise invoiced prior to the Closing Date (except as otherwise reasonably agreed by the Initial Borrower).
(e) The Administrative Agent shall have received (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Target and its Subsidiaries for the Fiscal Year ended December 31, 2011 and the Fiscal Year ended December 31, 2012 and (ii) unaudited consolidated balance sheets and related statements of income and cash flows of the Target and its Subsidiaries for the month ended November 30, 2013 (and the corresponding period of the prior Fiscal Year, each prepared in accordance with GAAP; it being agreed and understood that as of the date hereof, the Administrative Agent has received such documents.
(f) The Administrative Agent shall have received an unaudited pro forma consolidated balance sheet of the Borrowers as of the date of the most recent consolidated balance sheet delivered pursuant to clause (e) above and related unaudited pro forma combined statement of income of the Target and its Subsidiaries for the twelve-month period ending on such balance sheet date, in each case adjusted to give effect to the Transactions as if the Transactions had occurred as of such date (in the case of such pro forma balance sheet) or at the beginning of such period (in the case of the pro forma statement of income); it being agreed and understood that as of the date hereof, the Administrative Agent has received such documents.
(g) The representations and warranties (i) set forth in Articles III and IV of the Purchase Agreement made by the Target and the Sellers in the Purchase Agreement as are material to the interests of the Lenders shall be true and correct in all respects but only to the extent that Initial Borrower (or any of its Affiliates) has the right to terminate its obligations under the Purchase Agreement (or refuse to consummate the Purchase Agreement) as a result of the breach of such representation or warranty in the Purchase Agreement (the “Specified Acquisition Agreement Representations”) and (ii) of the Initial Borrower contained in Sections 5.01(a), 5.01(b)(ii) (solely as it relates to the Loan Documents), 5.02(a) (solely as it relates to the Loan Documents), 5.03, 5.04(d), 5.13, 5.15, 5.19 of this Agreement and Section 5(j) of the Security Agreement (solely with respect to the first two sentences thereof) (the “Specified Representations”) shall be true and correct in all material respects (without duplication of any materiality qualified contained therein); provided, that notwithstanding anything to the contrary contained herein or in any other Loan Document to the contrary, solely for the purpose of this clause (g), to the extent any of the Specified Acquisition Agreement Representations are qualified or subject to “material adverse effect”, the definition thereof shall be “Material Adverse Effect”, as defined in the Purchase Agreement.
(h) The Initial Borrower shall have provided the documentation and other information to the Administrative Agent (to the extent reasonably requested by the Administrative Agent in writing at least eight (8) Business Days prior to the Closing Date) that are required by regulatory authorities under the applicable “know-your-customer” rules and regulations, including the PATRIOT Act, in each case at least five (5) days prior to the Closing Date.
(i) Since December 29, 2013, there shall not have occurred a Material Adverse Effect (as defined in the Purchase Agreement). Notwithstanding anything herein to the contrary, the terms of the Loan Documents shall be in a form such that they do not impair availability of the Loans on the Closing Date if the conditions set forth in Section 4.01 are satisfied or waived (it being understood that to the extent any security interest in Collateral (including the creation or perfection of any security interest) (other than (x) grants of security interests in Collateral subject to the Uniform Commercial Code that may be perfected by the filing of Uniform Commercial Code financing statements and (y) the delivery of equity certificates for certificated Equity Interests of Holdings’ Domestic Subsidiaries that are part of the Collateral) is not or cannot be provided or perfected on the Closing Date after the Borrowers’ use of commercially reasonable efforts to do so, without undue burden or expense, the delivery of such Collateral (and granting and perfecting of security interests therein) shall not constitute a condition precedent to the availability of the Loans on the Closing Date but shall be required to be delivered within 90 days after the Closing Date (or such later date as may be reasonably agreed by the Administrative Agent in its sole discretion) pursuant to arrangements to be mutually agreed). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless 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 and the obligation of each Pre-Funded RC Lender to fund its Pre-Funded RC Deposit hereunder are subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf of and each party to this AgreementGuaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) each Collateral Document set forth on Schedule 1.01B, duly executed by each Loan Party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein (except as otherwise set forth on Schedule 1.01B) accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, and
(B) evidence that all other actions, recordings and filings (except as otherwise set forth on Schedule 1.01B) that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) party or is to be a certificate of Borrower, dated party on the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-lawsDate;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formedopinion from Ropes & Xxxx LLP, and that 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 New York counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to substantially in the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agentof Exhibit I;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 Borrower the Borrower, certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event event, development or circumstance state of circumstances since the date of the Audited Financial Statements December 31, 2005 that has had or could be reasonably expected to havehad, either individually or in the aggregate, a Material Adverse Effect; and Change;
(Cvii) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) on the Closing Date after giving effect to the Transaction, from the Chief Financial Officer of the Borrower;
(viii) evidence that all insurance (other than title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and that the Administrative Agent has been named as loss payee under each insurance policy with respect to such insurance as to which the Administrative Agent shall have reasonably requested to be so named;
(ix) a certificate signed certified copies of the Merger Agreement, the CMBS Facilities Documentation and the Senior Notes Documentation, in each case duly executed by the parties thereto, together with all material agreements and instruments and other material documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower attesting to the Solvency that such documents are in full force and effect as of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;; and
(x) evidence that all insurance required to be maintained pursuant a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may requireinitial Credit Extension.
(b) Without duplication of amounts described in clause (c) below, any All fees and expenses required to be paid on or hereunder and invoiced before the Closing Date shall have been paidpaid in full in cash.
(c) Unless waived by AgentPrior to, or substantially simultaneously with, the initial Credit Extensions, (i) the Equity Contributions shall have been consummated and (ii) the Merger shall be consummated in accordance with the terms and conditions of the Merger Agreement (and no provision of the Merger Agreement shall have been waived, amended, supplemented or otherwise modified in a manner material and adverse to the Lenders without the consent of the Arrangers (not to be unreasonably withheld or delayed).
(d) Substantially simultaneously with the initial Credit Extensions, the Borrower shall have paid received (i) at least $550,000,000 in gross cash proceeds from the issuance of the Senior Notes and (ii) at least $987,655,000 in gross cash proceeds from the consummation of the Specified Lease Transactions (of which approximately $790,000,000 shall have been received by the Specified Lease Entities from the CMBS Facilities).
(e) Prior to, or substantially simultaneously with, the initial Credit Extensions, the Borrower shall have terminated the Existing Credit Agreements and taken all reasonable feesother necessary actions such that, charges after giving effect to the Transaction, (i) Holdings and disbursements its Subsidiaries shall have outstanding no Indebtedness (including Disqualified Equity Interests), other than (A) the Loans and L/C Obligations, (B) the Senior Notes, and (C) Indebtedness otherwise permitted under 7.03, (ii) Holdings shall have outstanding no Equity Interests (or securities convertible into or exchangeable for Equity Interests or rights to acquire Equity Interests) other than Qualified Equity Interests beneficially owned, directly or indirectly, by the Equity Investors, and (iii) the Borrower shall have outstanding no Equity Interests (or securities convertible into or exchangeable for Equity Interests or rights or options to acquire Equity Interest) other than Equity Interests owned by Holdings.
(f) Prior to, or substantially simultaneously with, the initial Credit Extensions, the Administrative Agent shall have received, for deposit into the Capital Expenditures Account, $100,000,000 of counsel cash proceeds funded by a portion of the Equity Contributions.
(g) The Arrangers and the Lenders shall have received (i) the Audited Financial Statements and the audit report for such financial statements and (ii) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries, as may have been restated prior to Agent the date hereof, for (directly to such counsel if requested by AgentA) each subsequent fiscal quarter ended after December 31, 2006 and at least forty five (45) days before the Closing Date (the “Unaudited Financial Statements”), and (B) to the extent invoicedreasonably available and, prior to or on in any event, excluding footnotes, each fiscal month after the most recent fiscal period for which financial statements were received by the Arrangers and the Lenders as described above and ended at least thirty (30) days before the Closing Date, plus such additional amounts of such fees, charges which financial statements described in preceding clauses (i) and disbursements as (ii)(A) shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent)prepared in accordance with GAAP.
Appears in 1 contract
Samples: Credit Agreement (Cheeseburger-Ohio, Limited Partnership)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to immaterial matters or items specified in clause (v) or (vi) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the LendersAdministrative Agent:
(i) executed counterparts of this Agreement signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note, each in a principal amount equal to such Lender's Commitment;
(iii) the Audited Financial Statements and unaudited financial statements for the fiscal quarter ended September 30, 2002;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers of Borrower Officer as the Administrative Agent may reasonably require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications evidence as the Administrative Agent may reasonably require to evidence verify that the Borrower is duly organized or formed, and that Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownershipin which it is required to be qualified to engage in business, lease or operation including a certified copy of properties or the conduct Borrower's Organization Documents, certificates of its good standing and/or qualification to engage in business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectand tax clearance certificates;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that which has had or could be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; and , (C) all the current Debt Ratings or Corporate Credit Ratings, as applicable, and (D) the properties of the Borrower and its Material Subsidiaries are insured with financially sound and reputable insurance required to be maintained pursuant to companies in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Loan Documents has been obtained Borrower and is in effectits Subsidiaries operate;
(ixvii) a certificate signed by a Responsible Officer an opinion of Borrower attesting counsel to the Solvency Borrower substantially in the form of Exhibit E;
(viii) evidence that the Borrower both before is entering into the Amended and after giving effect Restated Multi-Year Credit Agreement to any Borrowing, or the issuance be effective as of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xiiix) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
Appears in 1 contract
Samples: 364 Day Credit Agreement (Enbridge Energy Partners Lp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder on or after the Fifth Restatement Effective Date is subject to satisfaction of the following conditions precedentprecedent except as otherwise agreed between the Borrowers and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or a Guarantor, each dated the Closing Date (oras applicable, 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:its legal counsel (subject to Section 6.13(c)):
(i) executed counterparts of this Agreement signed on behalf of Agreement, the Security Agreements, and each party to this AgreementGuaranty;
(ii) a Note Notes executed by Borrower the Borrowers in favor of each Lender requesting a Notethat has requested Notes at least two Business Days in advance of the Fifth Restatement Effective Date;
(iii) the elements of the Collateral and Guarantee Requirement required to be satisfied on the Fifth Restatement Effective Date shall have been satisfied and each Collateral Document set forth on Schedule 1.01B required to be executed on the Fifth Restatement Effective Date as indicated on such schedule, duly executed by each Loan Party or a Guarantor (including the Core-Xxxx Acquired Companies), as applicable, thereto, together with evidence that all other actions, searches, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; provided that to the extent any lien search, Collateral or insurance referred to in this clause (iii) (other than pledge and perfection of security interests in Equity Interests of Domestic Subsidiaries and Canadian Subsidiaries of the Borrowers and the Guarantors (to the extent required hereunder) and other assets with respect to which a Lien may be perfected by the filing of a financing agreement under the Uniform Commercial Code or PPSA) is not provided on the Fifth Restatement Effective Date after the Borrowers’ use of commercially reasonable efforts to do so, the delivery of such lien search, Collateral or insurance referred to in clause (iii) above shall not constitute a condition precedent to the availability of the Revolving Loans on the Fifth Restatement Effective Date but shall be required to be delivered after the Fifth Restatement Effective Date pursuant to Section 6.13(c) (it being understood that, due to the eligibility requirements set forth in the definitions of “Eligible Accounts”, “Eligible Inventory”, “Eligible In-Transit Inventory”, “Eligible Real Property” and “Eligible Rolling Stock”, Excess Availability may be adversely affected if the above mentioned conditions are not satisfied);
(iv) (A) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party and each Guarantor (including the Core-Xxxx Acquired Companies) 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 Borrower such Loan Party or such Guarantor is a party;
(iv) party or is to be a certificate of Borrowerparty on the Fifth Restatement Effective Date, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear a good standing certificate from the signatures applicable Governmental Authority of each officer authorized to sign the Loan Documents, Party’s and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the each Guarantor’s jurisdiction of incorporation, organization of Borrower and or formation, each dated a true and correct copy of its by-lawsrecent date prior to the Fifth Restatement Effective Date;
(v) such documents and certifications as Agent may reasonably require (A) an opinion from Xxxxxx Xxxxxxx Xxxxx LLP, New York counsel to evidence that Borrower is duly organized or formedthe Loan Parties, and that Borrower is validly existing(B) opinions of local counsel to the Loan Parties, which opinions, in good standing and qualified to engage in business in each jurisdiction where its ownershipcase, lease or operation of properties or the conduct of its business requires such qualification, except shall be reasonably acceptable to the extent that failure Administrative Agent with regard to do so could not such matters of law as the Administrative Agent shall reasonably be expected to have a Material Adverse Effectrequest;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedsince July 3, (B) that 2021, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(vii) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Fifth Restatement Effective Date after giving effect to the Transactions, from the Treasurer of Holdings;
(viii) [reserved]; and and
(Cix) subject to clause (iii) above, evidence that all insurance (other than title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and that the Administrative Agent has been named as loss payee and additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ixb) All fees and expenses required to be paid hereunder, under the Fee Letter and invoiced on or before the Fifth Restatement Effective Date shall have been paid in full in cash or will be paid on the Fifth Restatement Effective Date.
(c) The Administrative Agent shall have received (i) unaudited consolidated balance sheets and related statements of income and cash flows of Holdings and its Subsidiaries and, if different, of Holdings and its Restricted Subsidiaries for the most recently ended fiscal quarter ending at least 45 days before the Fifth Restatement Effective Date, (ii) quarterly projected consolidated balance sheets of Holdings and its Subsidiaries (prepared by giving Pro Forma Effect to the Transactions) as of each fiscal quarter end through the end of the fiscal year 2021, and the related consolidated statements of projected cash flow and projected income and a certificate signed summary of the material underlying assumptions applicable thereto, and (iii) annual projected consolidated balance sheets of Holdings and its Subsidiaries (prepared by giving Pro Forma Effect to the Transactions) as of each fiscal year end for each of fiscal years 2022 through and including 2026, and the related consolidated statements of projected cash flow and projected income and a summary of the material underlying assumptions applicable thereto (and such projections shall not be inconsistent with information provided to Xxxxx Fargo before the Fifth Restatement Effective Date).
(d) [Reserved].
(e) [Reserved].
(f) [Reserved].
(g) At least three Business Days before the Fifth Restatement Effective Date, the Administrative Agent and the Lenders shall have received a Beneficial Ownership Certification and all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that has been requested by the Administrative Agent or any Lender at least ten Business Day before the Fifth Restatement Effective Date.
(h) The Administrative Agent shall have received confirmation from each of the Administrative Agent, the Collateral Agent, and each Lender that (i) such Person’s due diligence with respect to flood insurance requirements for all Mortgaged Properties has been completed, (ii) the results of such due diligence are satisfactory to such Person, and (iii) such Person has received all evidence of compliance with flood insurance requirements set forth in the Loan Documents and found such evidence reasonably satisfactory.
(i) The Administrative Agent shall have received a Borrowing Base Certificate dated as of the Fifth Restatement Effective Date, relating to the month ended on July 31, 2021, and executed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before Lead Borrower, and such Borrowing Base Certificate shall reflect an Excess Availability (after giving effect to any Borrowing, or (without duplication) the issuance of any Letters of Credit, in each case, Transactions and the Credit Extensions made on the Closing Fifth Restatement Effective Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may requireof at least $1,000,000,000.
(b) Without duplication of amounts described in clause (c) below, any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies 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 the Effective Date, as applicable (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 Agent the Administrative Agent, its legal counsel and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf and the other Loan Documents, each properly executed by a Responsible Officer of each party to the signing Loan Party and, in the case of this Agreement, by each Lender;
(ii) a Note executed resolutions of the Board of Directors of the Borrower and each Corporate Guarantor, certified by Borrower in favor the Secretary or an Assistant Secretary of each Lender requesting a Note;
(iii) such certificates Person which authorize the execution, delivery, and performance by such Person of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as 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 Borrower such Person is or is to be a party;
(iviii) a certificate of Borrower, dated incumbency certified by the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance Secretary or an Assistant Secretary of the Loan DocumentsBorrower and each Corporate Guarantor, (B) identify by name and title and bear respectively, certifying the signatures names of each officer the officers of such Person authorized to sign this Agreement and each of the other Loan Documents, and Documents to which such Person is or is to be a party (C) contain appropriate attachments, including the certificates contemplated herein) together with specimen signatures of such officers;
(iv) the certificate or articles of incorporation of the Borrower and each Corporate Guarantor, certified by the relevant authority Secretary of State of the jurisdiction of organization of Borrower and a true and correct copy state of its by-lawsincorporation;
(v) bylaws of the Borrower and each Corporate Guarantor, certified by the Secretary or an Assistant Secretary of such documents Person;
(vi) (A) certificates of the appropriate governmental officials of the respective states of incorporation of the Borrower and certifications each Corporate Guarantor, as Agent may reasonably require to evidence that Borrower is duly organized or formedthe existence and good standing of such Persons, and that Borrower is validly existing(B) with respect to the Borrower, in good standing Sonic Restaurants, Inc., Sonic Service Corp. and qualified to engage in Sonic Industries Inc. only, certificates of the appropriate governmental officials of each state where the nature of such Person’s business in each jurisdiction such state makes qualification to do business necessary and 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 qualify would have a Material Adverse Effect;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower qualification and the Loan Documents good standing of such Person in form and substance reasonably satisfactory to Agentsuch states;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of appropriate Organizational Documents and agreements relating to America’s Drive-In Trust, as the Administrative Agent may request, all material consents, licenses and approvals of third parties, if any, required in connection with certified to the execution, delivery and performance by Borrower and the validity against Borrower satisfaction 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 Borrower an authorized officer of Sonic Restaurants, Inc., certifying that (A) that each of the conditions specified in Sections 4.02(a) Partnerships has been duly formed and (b) have been satisfiedis validly existing, (B) that there has been no event or circumstance since the date Partnerships have the power and authority to execute, deliver and perform this Agreement and each of the Audited Financial Statements that has had or could be reasonably expected other Loan Documents to havewhich any Partnership is a party, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required Sonic Restaurants, Inc. has the power and authority to be maintained pursuant to execute and deliver this Agreement and each of the other Loan Documents has been obtained to which any Partnership is a party on behalf of the Partnerships, as the managing general partner of each of the Partnerships, and is in effectto thereby bind the Partnerships;
(ix) a certificate signed by of an authorized officer of Sonic Restaurants, Inc., certifying that (A) each of the LLCs has been duly formed and is validly existing, (B) the LLCs have the power and authority to execute, deliver and perform this Agreement and each of the other Loan Documents to which any LLC is a Responsible Officer party and (C) Sonic Restaurants, Inc. has the power and authority to execute and deliver this Agreement and each of Borrower attesting the other Loan Documents to which any LLC is a party on behalf of the Solvency LLCs, as the manager of Borrower both before each of the LLCs, and after giving effect to any Borrowing, or thereby bind the issuance of any Letters of Credit, in each case, on the Closing DateLLCs;
(x) evidence that all insurance required to be maintained pursuant favorable opinions of general counsel of the Loan Parties and legal counsel to the Loan Documents has been obtained Parties, addressed to the Administrative Agent and is each Lender in effectform and substance customary for financings of this type and otherwise reasonably satisfactory to the Administrative Agent;
(xi) searches of Uniform Commercial Code filings in the jurisdiction of formation of the Borrower and each Corporate Guarantor and copies of the financing statements on file in such jurisdictions;
(xii) searches of ownership of, and Liens on, intellectual property of the Borrower and each Corporate Guarantor in the appropriate governmental offices;
(xiii) duly executed notices of grant of security interest in the form required by the Security Agreement as are necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the intellectual property of the Loan Parties;
(xiv) all certificates evidencing any certificated Capital Stock pledged to the Administrative Agent pursuant to the Pledge Agreement, together with duly executed in blank and undated stock powers attached thereto;
(xv) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, the Existing Credit Agreement has been or concurrently with the Effective Date will be terminated;
(xvi) certified copies of the Tender Offer Documents (including all schedules and exhibits thereto) duly executed by the parties thereto and in form and substance satisfactory to the Lenders, together with all agreements instruments and other documents delivered therewith as the Administrative Agent may request;
(xvii) all other Loan Documents to be delivered on the Closing Date will beduly executed and completed, paid in full, dischargeddated the Closing Date, and releasedenforceable against the Loan Parties thereto; and
(xiixviii) such other assurances, certificates, documents, reports, consents or opinions as Agent the Administrative Agent, the L/C Issuer or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Effective Date shall have been paid, and all Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Closing Effective Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) There shall not have occurred an event or circumstance since August 31, 2005 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(e) There shall not have occurred any action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in any court or before any Governmental Authority that purports to materially and adversely affect the Borrower or its Subsidiaries.
Appears in 1 contract
Samples: Credit Agreement (Sonic 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 precedentprecedent unless waived by Lender:
(a) AgentThe 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 the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) ), unless otherwise noted herein, and each in form and substance reasonably satisfactory to Agent the Lender and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf of and, other than a Note, each party other Loan Document, sufficient in number for distribution to this Agreementthe Lender and the Borrower;
(ii) if requested by the Lender, a Note executed by Borrower in favor of each Lender requesting a Notethe Borrower;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as Agent the Lender 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 the Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as Agent the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and in each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxxx Xxxxx LLP, counsel to the Loan Parties acceptable to Agent Borrower, addressed to Agent and each the Lender, as to the matters set forth in Exhibit D-1 and such other matters concerning the Borrower and the Loan Documents in form and substance as the Lender may reasonably satisfactory to Agentrequest;
(viivi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party, and such material consents, licenses and approvals shall be in full force and effect, or (B) stating that no such material consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfied unless waived by Lender 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 Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(xviii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and the Lender has been named as additional insured and/or loss payee thereunder;
(ix) (A) the corporate organizational structure, capital structure and ownership of the Borrower and its Subsidiaries and the structure utilized to consummate the merger of the Borrower into a wholly owned Subsidiary of Xxxx Corporation pursuant to the Merger Agreement and the definitive documentation relating thereto, including the Merger Agreement, shall be reasonably satisfactory to the Lender, (B) such definitive documentation shall have been executed and delivered by all parties thereto and shall be in full force and effect and in compliance in all material respects with applicable laws and regulations, (C) such definitive documentation shall be delivered to the Lender and certified by a Responsible Officer of the Borrower and (D) the Borrower shall be, and a Responsible Officer of the Borrower shall certify to the Lender that the Borrower is, in compliance with all such definitive documentation;
(x) the Borrower shall have delivered to the Lender a certificate of a Responsible Officer, in form and substance satisfactory to the Lender, to the effect that the representations and warranties in Article V are true, correct and complete in all material respects on and as of the Closing Date to the same extent as though made on and as of that date (or, to the extent such representations and warranties specifically relate to an earlier date, that such representations and warranties were true, correct and complete in all material respects on and as of such earlier date) and that the Borrower shall have 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 except as otherwise disclosed to and agreed to in writing by the Lender; provided that, if a representation and warranty, covenant or condition is qualified as to materiality, the applicable materiality qualifier set forth above shall be disregarded with respect to such representation and warranty, covenant or condition for purposes of this condition; and
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with on the Closing Date Date, the Lender shall have received a certificate from a Responsible Officer of the Borrower dated the Closing Date, substantially in the form of Exhibit F annexed hereto and with appropriate attachments, in each case demonstrating that, after giving effect to the consummation of the transactions contemplated by the Loan Documents, the Borrower will be, paid in full, discharged, and releasedbe Solvent; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders Lender reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, The Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to Agent (directly to such counsel if requested by Agent) the Lender to the extent invoiced, invoiced prior to or on the Closing Date.
(d) There shall not be pending or threatened any action, plus suit, investigation, litigation or proceeding in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(e) The Borrower shall have obtained all material Governmental Authorizations and all consents of other Persons, in each case that are necessary in connection with the transactions contemplated by the Loan Documents and the continued operation of the business conducted by the Borrower and its Subsidiaries in substantially the same manner as conducted prior to the Closing Date. Each such additional amounts Governmental Authorization and consent shall be in full force and effect, except in a case where the failure to obtain or maintain a Governmental Authorization or consent, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Loan Documents or the financing thereof. No action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of such feesthe foregoing shall be pending, charges and disbursements as the time for any applicable Government Authority to take action to set aside its consent on its own motion shall constitute have expired.
(f) The Lender shall have received evidence satisfactory to it that the Borrower and its reasonable estimate of such fees, charges and disbursements incurred Subsidiaries shall have taken or caused to be incurred by it through taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such filings and recordings (other than the closing proceedings filing or recording of items described in clauses (provided ii), (iii) and (iv) below) that may be necessary or, in the opinion of the Lender, desirable in order to create in favor of the Lender, a valid and (upon such estimate filing and recording) perfected First Priority security interest in the entire personal and mixed property Collateral. Such actions shall not thereafter preclude a final settling of accounts between Borrower and Agent).include the following:
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing 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 signed on behalf of each party to this Agreementand the Guaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) each Collateral Document set forth on Schedule 1.01A, duly executed by each Loan Party party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein (except as set forth on Schedule 1.01A) accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) to the extent any Mortgages are delivered on the Closing Date, to the extent required under the Collateral and Guarantee Requirement, opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent; and
(C) evidence that all other actions, recordings and filings (other than as set forth on Schedule 1.01A) that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) party or is to be a certificate of Borrower, dated party on the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-lawsDate;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formedopinion from (x) Ropes & Gxxx LLP, and that 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 New York counsel to the Loan Parties acceptable to Agent addressed to Agent substantially in the form of Exhibit H and each Lender, (y) the legal opinion of local counsel in Arizona and Nevada as to may be required by the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Administrative Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event not occurred any event, development or circumstance since the date of the Audited Financial Statements December 31, 2005, that has had or could would reasonably be reasonably expected to have, either individually or in the aggregate, have a Company Material Adverse Effect; ;
(vii) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the Chief Financial Officer of the Borrower;
(viii) a certified copy of the Sponsor Management Agreement, including a certification by a Responsible Officer of the Borrower that such agreement is in full force and effect as of the Closing Date;
(Cix) evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and that the Administrative Agent has been named as loss payee under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ixx) a certificate signed certified copy of the Merger Agreement, the material provisions of which shall not have been amended, supplemented or otherwise modified (pursuant to a waiver or otherwise) in a manner materially adverse to the Lenders without the prior written consent of the Arrangers (which consent shall not have been and shall not be unreasonably withheld, conditioned or delayed), duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower attesting to the Solvency that such documents are in full force and effect as of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(xxi) evidence that all insurance required to be maintained pursuant a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and releasedinitial Credit Extension; and
(xii) such other assurancesa completed Perfection Certificate (as defined in the Security Agreement), certificatesexecuted and delivered by a Responsible Officer of the Borrower, documents, consents or opinions as Agent or the Required Lenders reasonably may requiretogether with all attachments contemplated thereby.
(b) Without duplication of amounts described in clause (c) below, any All fees and expenses required to be paid on or hereunder and invoiced before the Closing Date shall have been paidpaid in full in cash.
(c) Unless waived by Agent(i) Prior to or simultaneously with the initial Credit Extension, the Equity Contribution shall have been funded in full in cash; and (ii) prior to or substantially concurrently with the initial Credit Extension, (A) the Merger shall be consummated in accordance with the terms of the Merger Agreement and in compliance with applicable material Laws and regulatory approvals and (B) the other Transactions to be consummated on or prior to the Closing Date shall have been consummated.
(d) Prior to or simultaneously with the initial Credit Extensions, the Borrower shall have paid received (i) at least $450,000,000 in gross cash proceeds from the issuance of the Senior Subordinated Notes and (ii) at least $650,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) Prior to or simultaneously with the initial Credit Extensions, the Borrower shall have taken all reasonable feesnecessary actions such that, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) after giving effect to the extent invoicedTransaction, prior (i) the Borrower and its Subsidiaries shall have outstanding no Indebtedness or preferred Equity Interests other than (A) the Loans and L/C Obligations, (B) the New Notes and (C) Indebtedness permitted under Section 7.03 and (ii) the Borrower shall have outstanding no Equity Interests (or securities convertible into or exchangeable for Equity Interests or rights or options to or on acquire Equity Interests) other than Qualified Equity Interests.
(f) The Arrangers and the Closing Date, plus Lenders shall have received (i) the Audited Financial Statements and the audit report for such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings financial statements (provided that such estimate which shall not thereafter preclude a final settling be subject to any qualification) and (ii) unaudited consolidated balance sheets and related statements of accounts between Borrower income, stockholders’ equity and Agentcash flows of West and its Subsidiaries for (A) the fiscal quarter ended June 30, 2006 and (B) the six month period ended on such date (collectively, the “Unaudited Financial Statements”), which financial statements described in clauses (i) and (ii) shall be prepared in accordance with GAAP.
(g) The Arrangers and the Lenders shall have received the Pro Forma Financial Statements.
(h) The Administrative Agent shall have received evidence satisfactory to the Administrative Agent that the Existing Credit Agreement shall be simultaneously terminated and all amounts thereunder shall be simultaneously paid in full.
Appears in 1 contract
Samples: Credit Agreement (West Corp)
Conditions of Initial Credit Extension. The effectiveness of this Agreement and the obligation of the L/C Issuer and of each Lender to make its initial Credit Extension hereunder is on the Closing Date, if any, are subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimile or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyOfficer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to Agent and each of the LendersAdministrative Agent:
(i) executed counterparts of this Agreement signed Agreement, executed and delivered by the Administrative Agent, the Borrower and each Lender listed on behalf of each party to this AgreementSchedule 2.01;
(ii) a Revolving Note executed by the Borrower in favor of each Revolving Lender requesting a Revolving Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of 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 Borrower is a partyDocuments;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that 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 opinions of counsel Skadden, Arps, Slate Mxxxxxx & Fxxx LLP and Bxxxxxx Xxxxx LLP, counsels to the Loan Parties acceptable to Agent Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;; and
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) Section 4.02 have been satisfied, ; (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effectcurrent Debt Ratings; and (C) all insurance that, as of the date of the last financial statements delivered pursuant to the Existing Credit Agreement, the Borrower was in pro forma compliance with the financial covenants contained in Section 7.10.
(b) Any fees required to be maintained paid by the Borrower on or prior to the Closing Date pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance expenses required to be maintained reimbursed by the Borrower on or prior to the Closing Date pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any fees required to be paid on or before the Closing Date shall have been paid.
; provided that invoices for such expenses have been presented to the Borrower a reasonable period of time (cand in any event not less than one (1) Unless Business Day) prior to the Closing Date (including, unless waived by the Administrative Agent, Borrower shall have paid all reasonable reasonable, documented, out-of-pocket fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)).
(i) Upon the reasonable request of any Lender made in writing at least ten (10) Business Days prior to the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested by such Lender that satisfies all requirements of regulatory authorities applicable to such Lender and such Lender’s internal policies and procedures 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) Business Days prior to the Closing Date and (ii) at least five (5) Business Days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation it shall have delivered, to each Lender that so requests at least ten (10) Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(d) The Administrative Agent’s receipt of an executed copy of a certificate signed by a Responsible Officer certifying the Borrower’s Sustainability Metric Components for the calendar year ended December 31, 2020 (solely for purposes of this Section 4.01(d), reflecting the Boundary Properties that the Borrower has owned and that were in service for the period of two (2) full consecutive calendar years ended December 31, 2020). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, (i) this Agreement and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Initial Credit Extension hereunder is subject to satisfaction of the following conditions precedentprecedent except as otherwise agreed between the Borrower and the Administrative Agent:
(a) The Administrative Agent’s receipt or Collateral Trustee’s receipt, as applicable, of the following, each of which shall be originals originals, facsimiles or telecopies electronic transmission in .pdf format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf of and the Guaranty by each party to this AgreementLoan Party and Lender, as applicable;
(ii) a an original Note executed by the Borrower in favor of each Lender requesting that has requested a Note;
(iii) each Collateral Document set forth on Schedule 2 required to be executed on the Closing Date as indicated on such schedule, substantially simultaneously with the Initial Credit Extension duly executed by each Loan Party thereto, together with (A) original certificates, if any, representing the pledged equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the pledged debt referred to therein endorsed in blank; and (B) evidence that, substantially simultaneously with the closing of the Revolving Credit Facility, all other actions, recordings and filings under the Uniform Commercial Code and with the United States Patent and Trademark Office and the United States Copyright Office shall have been taken, completed or otherwise provided in a manner reasonably satisfactory to the Administrative Agent and Collateral Trustee;
(iv) such certificates (including a certificate substantially in the form of Exhibit I) of resolutions or other corporate action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate party or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formed, and that 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 counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, party on the Closing Date;
(xv) an opinion from Xxxxxx & Xxxxx, LLP, New York and Texas counsel to the Loan Parties, substantially in the form of Exhibit H;
(vi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties together with evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all existing Liens (other than Indebtedness permitted under Section 7.02 and in respect of Liens permitted under Section 7.01) have been, been terminated and all actions required to terminate and release such Liens have been satisfactorily taken or concurrently will be taken substantially simultaneously with the Closing Date will be, paid in full, discharged, and releasedclosing of the Transaction; and
(xiivii) such other assurancesgood standing certificates or certificates of status, as applicable and bring down certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may requirefor each Loan Party.
(b) Without duplication of amounts described The Lenders shall have received on or prior to the Closing Date, all documentation and other information reasonably requested by them in clause writing at least seven (7) Business Days prior to the Closing Date in order to allow the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(c) below, any All fees and expenses required to be paid on or before hereunder and invoiced prior to the Closing Date shall have been paidpaid in full in cash on or prior to the Closing Date.
(cd) Unless waived by Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, prior Prior to or on substantially simultaneously with the Closing Date, plus such additional the Acquisition shall have been consummated, or substantially simultaneously with the Closing Date shall be consummated, in accordance with the Acquisition Agreement in the form delivered to the Lead Arranger on December 3, 2009 (and no provision of the Acquisition Agreement shall have been waived, amended, supplemented or otherwise modified in a manner material and adverse to the Lenders without written notification to the Lenders and the consent of the Lead Arranger (it being understood that any change in the price (including a price decrease), other than a change in price that is not material and adverse to the Lenders, or in the structure of the Acquisition will be deemed to be material and adverse to the Lenders and will require the prior written consent of the Lenders)).
(e) Prior to or substantially simultaneously with the Closing Date, (i) the Borrower shall have issued the Senior Notes in an aggregate principal amount of not less than $300,000,000 and shall have received the net proceeds thereof and (ii) the Parent shall have received $37,000,000 in gross cash proceeds from the sale of its Equity Interests.
(f) The Administrative Agent shall have received (i) unqualified (as to “going concern” and scope) audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2006, December 31, 2007 and December 31, 2008, (ii) the Unaudited Financial Statements, (iii) the Pro Forma Financial Statements, and (iv) historical financial statements of the Acquired Business.
(g) Substantially simultaneously with the Closing Date, all Existing Indebtedness (except for the Existing Indebtedness designated on Schedule 1.01A as remaining in effect after the Closing Date) shall have been repaid in full, together with all fees and other amounts owing thereon or an amount has been deposited in escrow for the irrevocable and indefeasible prepayment and repayment of such feesExisting Indebtedness as of the Closing Date.
(h) The Total Leverage Ratio as of the Closing Date, charges after giving effect to the Transactions on a Pro Forma basis for the twelve months ending as of September 30, 2009, shall not be greater than 2.85:1.00; provided, that, for purposes of this Section 4.01(h), Consolidated Total Debt shall exclude any amounts in respect of Existing Indebtedness for which corresponding amounts have been deposited in escrow for the irrevocable and disbursements as shall constitute its reasonable estimate indefeasible prepayment and repayment of such feesExisting Indebtedness as of the Closing Date. For purposes of this Section 4.01(h), charges it is agreed that Closing Date EBITDA for the twelve months ending as of September 30, 2009 is $109,500,000.
(i) The Administrative Agent shall be reasonably satisfied that all necessary governmental and disbursements incurred third party consents and approvals necessary in connection with the Transaction have been obtained and be effective and all applicable waiting periods in respect thereof shall have expired without any adverse action being taken by any Governmental Authority and that no Law shall be applicable in the reasonable judgment of the Lenders that restrains or prevents the consummation of the Transaction.
(j) The Administrative Agent shall have received evidence reasonably satisfactory to be incurred by it through of the closing proceedings (provided that such estimate shall not thereafter preclude a final settling insurance coverage of accounts between the Borrower and Agent)Guarantor and such insurance coverage shall be in accordance with Section 6.07.
Appears in 1 contract
Samples: Credit Agreement (Geokinetics Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is was subject to satisfaction of the following conditions precedent:precedent (except with respect to non-material matters or items with respect to which DeVry gave assurances satisfactory to the Administrative Agent that such items would be delivered promptly following the Original Closing Date):
(a) The Administrative Agent’s (or in the case of items (iii), (iv) and (v) the Collateral Agent’s) receipt of the following, each of which shall be were originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer or Senior Responsible Officer of the signing Loan Party, each dated the Original Closing Date (or, in the case of certificates of governmental officials, a recent date before the Original 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 signed on behalf of the Original Credit Agreement, the U.S. Subsidiary Guaranty, the Offshore Guaranty, and the Pledge Agreement, in sufficient number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrowers;
(ii) as to each Borrower, a Note executed by such Borrower in favor of each Lender requesting a Note;
(iii) share certificates representing the Collateral pledged under the Pledge Agreement, together with stock powers executed in blank;
(iv) evidence of the filing in the appropriate offices of UCC financing statements in the name of each Loan Party which is a pledgor under the Pledge Agreement (as debtor) and the Collateral Agent (as secured party) describing the Collateral under the Pledge Agreement;.
(v) such UCC search reports as the Administrative Agent or the Collateral Agent shall have requested;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this the Original Credit Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(vvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that Borrower each of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viviii) a favorable opinion opinions of (A) Mxxxxxxx X. Xxxxx, General Counsel of DeVry and Mayer, Brown, Rxxx & Maw special counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning Borrower in Exhibits H-1 and H-2 and (B) Cxxxxx, Gxxxxxx & Fxxxxx Barbados counsel to the Loan Documents in form and substance reasonably satisfactory to AgentParties;
(viiix) copies of all opinions of counsel, if any, addressed and delivered to DeVry pursuant to the Dominica Purchase Agreement, together with reliance letters to the effect that the Administrative Agent and the Lenders may rely on such opinions as if addressed to them;
(x) a certificate of a Responsible Officer of Borrower each Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiixi) a certificate (the “Closing Certificate”) signed by a Senior Responsible Officer of Borrower certifying DeVry to the effect that (A) that the conditions specified in Sections 4.02(a4.2(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements March 31, 2003 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (C) attached thereto is a calculation of the financial tests set forth in Section 7.15 (such calculation to be as of the last day of the period of four consecutive fiscal quarters of DeVry most recently ended prior to the Original Closing Date and to be on a proforma basis as if the Dominica Acquisition had been consummated at the beginning of such period), and (D) the unutilized Aggregate Commitments shall not be less than $25,000,000 after giving effect to the consummation of the Dominica Acquisition, the incurrence of all Indebtedness under the Original Credit Agreement and the Senior Notes on the Original Closing Date, and the repayment of the Existing Indebtedness;
(xii) a certificate (the “Acquisition Certificate”) signed by a Senior Responsible Officer of DeVry to the effect that concurrently therewith, (A) the conditions in Section 2.01(a) through 2.01(l) of the Dominica Purchase Agreement have been satisfied, without waiver thereof, (B) the Dominica Acquisition has been consummated substantially in accordance with the terms of the Dominica Acquisition Documents, and in compliance with applicable Laws, (C) all insurance required Existing Indebtedness has been repaid, all Liens (if any) securing such Existing Indebtedness have been released, and all commitments to be maintained extend credit pursuant to any agreement giving rise to such Existing Indebtedness have been terminated, (D) the Loan Dominica Acquisition Documents has have not been obtained materially altered, amended or changed or supplemented or any condition therein waived, in each case in a manner adverse to the Lenders (without the prior written consent of the Administrative Agent and the Arranger), and (E) attached thereto is in effecta copy of the Dominica Purchase Agreement (together with related schedules and exhibits);
(ixxiii) a certificate (the “Senior Note Funding Certificate”) signed by a Responsible Officer of Borrower attesting DeVry to the Solvency effect that (A) attached thereto is a true and correct copy of Borrower both before the Senior Note Purchase Agreement, and after giving effect to any Borrowing(B) the Senior Notes have been issued in an aggregate principal amount of not less than $125,000,000, or (C) concurrently therewith, the Borrowers have received proceeds of the Senior Notes in an amount not less than the aggregate principal amount thereof (less fees and related expenses), and (D) concurrently therewith, all fees and expenses then due and owing in connection with the issuance of any Letters of Credit, in each case, on the Closing DateSenior Notes have been paid;
(xxiv) evidence that all insurance required to be maintained pursuant to the Loan Documents 1996 Credit Agreement has been obtained and or concurrently with the Original Closing Date is in effect;
(xi) evidence that all Indebtedness being terminated and all Liens (other than Indebtedness permitted if any) securing obligations under Section 7.02 and Liens permitted under Section 7.01) the 1996 Credit Agreement have been, been or concurrently with the Original Closing Date will beare being released;
(xv) such other evidence of the accuracy of the certifications in the Closing Certificate, paid in full, dischargedthe Acquisition Certificate, and releasedthe Senior Note Funding Certificate as the Administrative Agent shall have requested; and
(xiixvi) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any and all fees and expenses required to be paid on or before the Original Closing Date (including any and all fees and expenses in respect of the Original Credit Agreement, the Original Fee Letter and the Senior Note Purchase Agreement), shall have been paid.
(c) Unless waived by the Administrative Agent, Borrower DeVry shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Original 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 Borrower DeVry and the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Devry Inc)
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, 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 Lenders:
(i) executed counterparts of this Agreement signed on behalf Agreement, the Collateral Documents, the Guaranty and each of the other Loan Documents (excluding the Ohio Mortgage) sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) proper financing statements and/or fixture filings 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 Pledge Agreement and the Indiana Mortgage, covering the Collateral described in the Pledge Agreement and the Indiana Mortgage;
(iv) certified copies of UCC, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower the Loan Parties as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower is a partyDocuments;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(vvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that Borrower such Loan Party is validly existing, in good standing and qualified to engage in business in each the jurisdiction where its ownershipit is organized and, lease or operation in the case of properties or the conduct Guarantor, in the State 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 EffectIndiana;
(vivii) evidence that a counterpart of the Indiana Mortgage has been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and other fees in connection therewith have been paid;
(viii) with respect to the Indiana Mortgage, a fully paid American Land Title Association Lender’s Extended Coverage title insurance policy (a “Mortgage Policy”), with endorsements and in amounts, in each case reasonably acceptable to the Administrative Agent (provided the amount of each Mortgage Policy shall not exceed the fair market value of the real property covered by the applicable mortgage as reasonably estimated by the Borrower), issued by First American Title Insurance Company or another title insurer reasonably acceptable to the Administrative Agent, insuring the such Indiana Mortgage to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting Permitted Liens (including the encumbrances shown on the Mortgage Policy), and providing for such other affirmative insurance as the Administrative Agent may deem reasonably necessary or desirable;
(ix) American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated no more than 40 days before the Closing Date, certified to the Administrative Agent and the issuer of the Mortgage Policies covering the Indiana Mortgage in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site 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 encroachments and other defects acceptable to the Administrative Agent; provided, if despite reasonable efforts of the Borrower such survey is not complete as of the Closing Date, such survey dated after the Closing Date shall be delivered as soon as practicable but no later than 30 days after such date;
(x) a favorable opinion completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property covered by the Indiana Mortgage (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto, if applicable);
(xi) a Phase I environmental site assessment in conformance with the scope and limitations of ASTM International’s Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process E1527-13 for each of the Guarantor’s generating stations located in Poneto, Indiana and Moraine, Ohio;
(xii) certificates attesting to the Solvency of each Loan Party from its chief financial officer or treasurer;
(xiii) written opinion(s) of counsel(s) (including New York counsel as well as local Ohio and Indiana counsels) to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(viixiv) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a), (b) and (c) have been satisfied, (B) the current Ratings, (C) the Certification Amount and (D) the Borrowing Limit;
(xv) a certificate of a Responsible Officer of Borrower each Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the consummation by such Loan Party of the transaction and the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiixvi) a certificate signed by a Responsible Officer certificates of Borrower certifying (A) that insurance, naming the conditions specified in Sections 4.02(a) and (b) have been satisfiedCollateral Agent, (B) that there has been no event or circumstance since the date on behalf of the Audited Financial Statements that has had Secured Parties, as an additional insured or could be reasonably expected to havelenders’ loss payee, either individually or in as the aggregatecase may be, a Material Adverse Effect; and (C) under all insurance required to be policies (including flood insurance policies) maintained pursuant with respect to the assets and properties of the Loan Documents has been obtained and is in effectParties that constitutes Collateral;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(xxvii) evidence that all insurance required to be maintained pursuant to the Loan Documents has Existing Credit Agreements and the DP&L Fifth Third Credit Facility have been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, are being terminated and the obligations thereunder have been paid in full, discharged, and released; and
(xiixviii) such other assurances, certificates, documents, consents or opinions as Agent or evidence that the Required Lenders reasonably may requireconditions precedent to the effectiveness of the DP&L PNC Credit Facility have been satisfied and all documentation thereof and required thereunder has been executed.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paidpaid to the extent invoiced at least two Business Days prior to the Closing Date.
(c) Receipt by the Lenders of all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations requested by such Lender at least ten (10) days prior to the Closing Date.
(d) Unless waived by Agentthe Arrangers, and subject to the provisions of the Fee Letter and the Commitment Letter, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel due to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced at least two Business Days prior to or on the Closing DateDate and required to be paid pursuant to the Fee Letters or the Commitment Letters. Without limiting the generality of the provisions of the last paragraph of Section 9.03, plus such additional amounts for purposes of such feesdetermining compliance with the conditions specified in this Section 4.01, charges and disbursements as each Lender that has signed this Agreement shall constitute its reasonable estimate of such feesbe deemed to have consented to, charges and disbursements incurred approved or accepted or to be incurred satisfied with, each document or other matter required thereunder to be consented to or approved by it through or acceptable or satisfactory to a Lender unless the closing proceedings (provided that Administrative Agent shall have received notice from such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent)Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The IPO by Parent shall have been consummated with gross cash proceeds therefrom, in a minimum amount of $350,000,000 on terms substantially consistent with Amendment Number 2 of the Form S-1, including any further amendments thereto (the “BKFS S-1”), and the Administrative Agent shall have received satisfactory evidence thereof, including a copy of the effective Form S-1 Registration Statement. The Administrative Agent shall be reasonably satisfied that the Equity Purchase shall be consummated substantially in accordance with the terms described in the BKFS S-1 and any other agreements and other documents relating to the Equity Purchase and applicable Law and regulatory approvals. The Refinancing shall have been consummated and the Administrative Agent shall have received satisfactory evidence thereof.
(b) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to Agent and each of the LendersAdministrative Agent:
(i) executed counterparts of this Agreement signed on behalf of each party to this Agreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a NoteNote to the extent such Lender requests such Note at least two Business Days prior to the Closing Date;
(iii) a certificate dated the Closing Date and executed by a Responsible Officer of each of the Loan Parties, certifying (A)(x) that attached thereto is a true and complete copy of the articles or certificate of incorporation or other comparable organizational documents of such certificates Loan Party, certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and complete copy of the bylaws, operating or comparable governing document of such Loan Party 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 actionrelevant governing body, incumbency certificates and/or other certificates as the case may be, authorizing the execution, delivery and performance of Responsible Officers of Borrower as 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 Borrower it is a party;, and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect without amendment, modification or rescission, and (y) 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 Borrowera 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;
(v) an opinion of Weil, Gotshal & Xxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender and in form and substance reasonably satisfactory to the Administrative Agent;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying as to the satisfaction of the conditions set forth in Section 4.02(a) and Section 4.02(b);
(vii) a Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension;
(viii) a certificate from the chief financial officer of Holdings attesting to the Solvency of Holdings, the Borrower and the Restricted Subsidiaries on a consolidated basis after giving effect to the Transactions;
(ix) executed counterparts of the Security Agreement together with the following:
(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 Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and Parties;
(C) contain appropriate attachmentsthe Intellectual Property Security Agreement, including duly executed by each Loan Party required to execute such Intellectual Property Security Agreement pursuant to the certificate Security Agreement, in proper form for filing with the United States Patent and Trademark Office or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-lawsUnited States Copyright Office, as applicable;
(vc) such documents all fees and certifications as Agent 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 (including fees pursuant to the Fee Letter) shall have been paid in full in cash (which amounts may reasonably require to evidence that Borrower is duly organized or formedbe offset against the loan proceeds funded on the Closing Date) (and in the case of expenses, and that 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 invoiced at least three Business Days prior to the Closing Date).
(d) [Reserved.]
(e) Since December 31, 2014, there has been no change, occurrence or development that failure to do so could not has had or would reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against Borrower Effect of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may require.
(b) Without duplication of amounts type described in clause (ca) below, any fees required to be paid on or before of the Closing Date shall have been paiddefinition thereof.
(c) Unless waived by Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Fidelity National Financial, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender Bank to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Agent: The Bank’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent the Bank and each of the Lendersits legal counsel:
(ia) executed counterparts of this Agreement signed on behalf of each party and all Collateral Documents sufficient in number for distribution to this Agreementthe Bank and the Borrower;
(iib) a Note executed by the Borrower in favor of each Lender requesting a Notethe Bank;
(iiic) the Guaranty executed by the Guarantor in favor of the Bank;
(d) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and Guarantor as Agent the Bank 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 the Borrower or Guarantor is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(ve) such documents and certifications certificates as Agent the Bank may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, formed and that the Borrower is and Guarantor 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;
(vif) a favorable opinion of counsel to the Loan Parties Borrower and Guarantor acceptable to Agent the Bank, addressed to Agent and each Lenderthe Bank, as to such matters concerning the matters set forth concerning Borrower and Guarantor and the Loan Documents in form and substance reasonably satisfactory to Agentthe Bank;
(viig) a certificate certificates of a Responsible Officer of the Borrower and Guarantor either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower such Loan Party and the validity against 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;
(viiih) a certificate certificates signed by a Responsible Officer of the Borrower and Guarantor certifying (A) that the conditions specified in Sections 4.02(a) and (b) 4.02 have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Closing Financial Statements that has have had or could reasonably be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(xi) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, including all necessary crop insurance on the Crops produced on the Eligible Real Estate and Eligible Leasehold Real Estate;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xiij) such other assurances, certificates, documents, consents consents, evidence of perfection of all Liens securing the Obligations or opinions as Agent or the Required Lenders Bank reasonably may require.;
(bk) Without duplication of amounts described in clause (c) below, any fees required to be paid on or before the Closing Date shall have been paid.;
(cl) Unless an appraisal of all Eligible Real Estate and Eligible Leasehold Real Estate as of the Closing Date in a form acceptable to the Bank;
(m) copies of UCC search reports listing all financing statements and other encumbrances which names the Borrower granting a security interest in the Collateral (under its present name and any previous name) and which are filed in the jurisdictions in which the Borrower or any other party to the Collateral Documents is located, organized or maintains any assets, together with copies of such financing statements;
(n) copies of all licenses, permits or other Governmental Authority relating to the operations of the Borrower;
(o) unless waived by Agentthe Bank, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to Agent (directly to such counsel if requested by Agent) the Bank to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and Agentthe Bank);
(p) a completed Borrowing Base Certificate;
(q) the Closing Date shall have occurred on or before July 1, 2005;
(r) receipt by the Bank of the executed Mortgages;
(s) an ALTA lender’s title insurance policy from a title company acceptable to the Bank, effective as of a date no earlier than the date and time of recording of any deed of trust or mortgage included in the Collateral Documents, in such amounts as determined by the Bank, insuring the Bank’s interest in the Real Estate, with only such exceptions as may be approved by the Bank, and including all endorsements required by the Bank; and
(t) the Borrower’s environmental questionnaire and all other evidence and documentation required by the Bank concerning the environmental condition of the Real Estate (the “Environmental Questionnaire”).
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 precedentprecedent except as otherwise agreed between the Borrower and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf of each party to this Agreementand the Guaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least five (5) Business Days in advance of the Closing Date;
(iii) executed counterparts of the Term Loan Intercreditor Agreement;
(iv) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, together with (except as provided in such Collateral Documents):
(A) except to the extent delivered to the Term Agent pursuant to the Term Loan Credit Agreement Documentation and the Term Loan Intercreditor Agreement, certificates, if any, representing the pledged equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the pledged debt referred to therein endorsed in blank; and
(B) evidence that all other actions, recordings and filings required by the Collateral Documents that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and Collateral Agent;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) party or is to be a certificate of Borrower, dated party on the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formed, and that 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 EffectDate;
(vi) a favorable an opinion of from Xxxxxxxx & Xxxxx LLP, New York, counsel to the Loan Parties acceptable to Agent addressed to Agent and each LenderParties, as to substantially in the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agentof Exhibit H-1;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consentsan opinion from Xxxxxxx Xxxxx LLP, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of Canadian counsel to the Loan Documents to which it is a partyParties, and such consents, licenses and approvals shall be substantially in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredthe form of Exhibit H-2;
(viii) a certificate of the Borrower, dated as of the Closing Date, and signed on behalf of Parent by a Responsible Officer of Borrower certifying (A) that the Borrower, confirming satisfaction of the conditions specified precedent set forth in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect);
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and the Loan Parties (taken as a whole) on the Closing Date after giving effect to any Borrowingthe Transaction, or from the issuance Chief Financial Officer of any Letters of Credit, in each case, on the Closing DateBorrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and that the Administrative Agent and Collateral Agent has been named as loss payee and additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(xi) evidence that all Indebtedness a Committed Loan Notice, Drawing Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension;
(xii) copies of a recent Lien, judgment, patent and all Liens trademark search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties;
(xiii) a certificate as to the good standing (or status or compliance, as applicable) of each Loan Party as of a recent date, from the Secretary of State (or other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01applicable Governmental Authority) have been, of its jurisdiction of incorporation or concurrently with formation;
(xiv) a Borrowing Base Certificate which calculates the Borrowing Base as of a date preceding the Closing Date will be, paid in full, discharged, and releasedthat is specified by the Administrative Agent; and
(xiixv) such other assurances, certificates, documents, consents or opinions as Agent or The Joint ABL Agents shall have received and be satisfied with a field examination from an appraiser acceptable to the Required Lenders reasonably may requireJoint ABL Agents.
(b) Without duplication The Transaction shall have been consummated or shall be consummated simultaneously on the Closing Date, in each case in all material respects in accordance with the terms hereof and the terms of amounts described the Transaction Documents, and the Borrower shall have received not less than $125,000,000, in clause proceeds from the funding of the Term Loan Credit Agreement on the Closing Date.
(c) below, any All fees and expenses required to be paid on or before hereunder and invoiced prior to the Closing Date shall have been paidpaid in full in cash or will be paid on the Closing Date out of the initial Credit Extension.
(cd) Unless waived by Agent, Borrower The Administrative Agent shall have paid received the Audited Financial Statements and the audit report for such financial statements.
(e) All Indebtedness of the Borrower and its Subsidiaries under the Existing Credit Agreement shall have been repaid in full, together with all reasonable feesfees and other amounts owing thereon, charges all commitments under the Existing Credit Agreement shall have been terminated and disbursements all letters of counsel to Agent (directly to such counsel if requested by Agent) credit issued pursuant to the extent invoicedExisting Credit Agreement shall have been terminated or incorporated into this Agreement and all liens thereunder shall have been terminated, prior to or on all as set forth in the payoff letter from the agent for the Existing Credit Agreement. For purposes of determining whether the Closing DateDate has occurred, plus such additional amounts of such feeseach Lender that has executed this Agreement shall be deemed to have consented to, charges and disbursements as shall constitute its reasonable estimate of such feesapproved or accepted, charges and disbursements incurred or to be incurred satisfied with, each document or other matter required hereunder to be consented to or approved by it through or acceptable or satisfactory to the closing proceedings (provided that Administrative Agent or such estimate shall not thereafter preclude a final settling Lender, as the case may be, unless such Lender has notified the Administrative Agent of accounts between Borrower and Agent)any disagreement prior to the initial Credit Extensions hereunder.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of and the Guaranty executed by each Person a party thereto, sufficient in number for distribution to this Agreementthe Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) counterparts of the Security Agreement, duly executed by each Loan Party, together with:
(A) certificates and instruments representing the Pledged Collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank;
(B) proper UCC 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 Agreement, covering the Collateral described in the Security Agreement;
(C) to the extent required to be delivered pursuant to the terms of the Collateral Documents, all instruments, documents and chattel paper in the possession of any of the Loan Parties, together with allonges or assignments as may be necessary or appropriate to perfect the Administrative Agent’s and the Secured Parties’ security interest in the Collateral; and
(i) searches of UCC or similar filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Liens permitted by Section 7.01, (ii) Tax lien, judgment and bankruptcy searches or other evidence reasonably satisfactory to it that all Taxes, filing fees, recording fees related to the perfection of the Liens on the Collateral have been paid and (iii) searches of ownership of intellectual property in the appropriate governmental offices as requested by the Administrative Agent;
(iv) a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement (as each such term is defined in Security Agreement and to the extent applicable) (together with each other intellectual property security agreement delivered pursuant to Section 6.12, in each case as amended, the “Intellectual Property Security Agreement”), duly executed by each applicable Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower and each Guarantor 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 or Guarantor is a party or is to be a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(vvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, and that 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;
(vivii) a favorable opinion opinions of Xxxxx & Xxxxxx L.L.P. and Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, dated as to of the matters Closing Date, substantially in the forms set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 requiredExhibit J;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying that (A) that the conditions specified in Sections 4.02(aSection 4.01(b) and (b4.01(c)(ii) have been satisfied, satisfied and (B) that there has been no event or circumstance since each of the Specified Representations and the Specified Purchase Agreement Representations are true and correct in all material respect (or, with respect to representations and warranties modified by materiality standards, in all respects) on and as of the date of the Audited Financial Statements that has had or could be reasonably expected to havesuch Credit Extension, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant except to the Loan Documents has been obtained extent that such representations and is warranties specifically refer to an earlier date, in effectwhich case they shall be true and correct in all material respect (or, with respect to representations and warranties modified by materiality standards, in all respects) as of such earlier date;
(ix) a solvency certificate substantially in the form of Exhibit I signed by a Responsible Officer the chief financial officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing DateBorrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or lenders 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;
(xiA) evidence that all Indebtedness audited consolidated balance sheets of the Borrower and all Liens its consolidated Subsidiaries as at the end of, and related statements of income and cash flows of the Borrower and its consolidated Subsidiaries for, the fiscal years ended December 31, 2014, December 31, 2015 and December 31, 2016 and (B) unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of, and related statements of income and cash flows of the Borrower and its consolidated Subsidiaries for, each subsequent fiscal quarter (other than Indebtedness permitted under Section 7.02 the fourth fiscal quarter of any fiscal year) of the Borrower and Liens permitted under Section 7.01its consolidated Subsidiaries ended after December 31, 2016 and ended at least 45 days before the Closing Date;
(A) have beena pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower and its Subsidiaries as of, or concurrently with and for the twelve-month period ending on, the last day of the most recently completed four fiscal quarter period ended at least 45 days prior to the Closing Date will be(or 90 days prior to the Closing Date in case such four fiscal quarter period is the end of the Borrower’s fiscal year), paid prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in fullthe case of such balance sheet) or at the beginning of such period (in the case of such statement of income) and (B) consolidated forecasts for the Borrower and its Subsidiaries (after giving effect to the Transactions) of balance sheets, discharged, income statements and releasedcash flow statements on an annual basis for each year during the term of the Facilities and on a quarterly basis for the first year after the Closing Date; and
(xiixiii) such other assurances(A) a Request for Credit Extension in accordance with the requirements hereof (including the notice periods set forth in Section 2.02(a) with respect to each Type of Loan being requested on the Closing Date, certificates, documents, consents or opinions as Agent and with a copy to the L/C Issuer or the Required Lenders reasonably may requireSwing Line Lender, if applicable), (B) a Funding Indemnity Letter (in a form provided by the Administrative Agent) with respect to any Eurodollar Rate Loans to be made on the Closing Date and (C) a customary flow of funds statement executed by the Borrower with respect to all Credit Extensions and other Transactions to occur on the Closing Date. Notwithstanding anything to the contrary in Section 4.01(a), to the extent any Collateral is not or cannot be provided, or the lien on any such Collateral is not or cannot be perfected, on the Closing Date after the Borrower’s, its Subsidiaries’ and its Affiliates’ respective use of commercially reasonable efforts without undue burden or expense to do so, the provision of such Collateral or perfection of such lien shall not constitute a condition precedent to the availability of the initial Credit Extensions but shall be required to be provided (or perfected) after the Closing Date pursuant to Section 6.22 hereof; provided that, notwithstanding the foregoing, each of the following shall be required on the Closing Date: (1) the execution and delivery of the Guaranty by each Guarantor, (2) the execution and delivery of all applicable Collateral Documents by each Loan Party, (3) the delivery of UCC financing statements with respect to each Loan Party (or an authorization permitting the Administrative Agent to file UCC financing statements with respect to each such Loan Party), (4) other than with respect to the Target Assets, the delivery of Intellectual Property Security Agreements with respect to each Loan Party that owns U.S. intellectual property for filing with the United States Patent and Trademark Office or the United States Copyright Office (or an authorization permitting the Administrative Agent to file Intellectual Property Security Agreements with respect to each such Loan Party) and (5) the delivery (including the provision of an applicable stock power or similar instrument of transfer) of the security interest in the certificated equity interests of each direct and indirect subsidiary of any Loan Party that are required to be pledged as Collateral.
(b) Without duplication Since March 31, 2017, there shall not have occurred a Closing Date Material Adverse Effect with respect to the Target Assets, or any event, condition or contingency that could reasonably expected to have a Closing Date Material Adverse Effect.
(i) The Administrative Agent shall have received a final, executed copy of amounts described each of the Closing Date Acquisition Agreements and the other Related Documents, including all exhibits, annexes, schedules, other attachments and other disclosure letters thereto, and any modification, amendment, consent or waiver thereof since the execution thereof on July 15, 2017, and (ii) the Closing Date Acquisitions shall have been consummated, or substantially simultaneously with the closing under the Facilities shall be consummated (including the consummation of the applicable regulatory requirements and receipt of the applicable third party consents, in clause each case, as set forth in the Closing Date Acquisition Agreements), in each case, in all material respects in accordance with the terms of the Closing Date Acquisition Agreements, after giving effect to any modifications, amendments, consents or waivers, other than those modifications, amendments, consents or waivers that are materially adverse to the interests of the Lenders, the Administrative Agent and the Arrangers.
(cd) belowThe Administrative Agent and the Lenders shall have received at least one Business Day before the Closing Date all documentation and other information about the Loan Parties and their Subsidiaries that shall have been reasonably requested by the Administrative Agent or the Lenders in writing at least five (5) business days prior to the Closing Date that the Administrative Agent and the Lenders reasonably determine is required by applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, any including without limitation the PATRIOT Act (provided that such information shall, to the extent requested at least ten (10) Business Days prior to the Closing Date, have been provided at least five (5) Business Days prior to the Closing Date).
(e) (i) All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(cf) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced at least one Business Day (or such shorter time as the Borrower may agree) prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of Section 9.03(c), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Quidel Corp /De/)
Conditions of Initial Credit Extension. (a) 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:
(ai) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (and, in the case of this Agreement, by each Lender), each dated the 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 Agent and each of the Lenders:):
(iii) executed counterparts of this Agreement signed on behalf of each party to this Agreementand the Guaranty;
(iiiii) a Note executed by the Borrower in favor of each Lender requesting a Note, with such requests provided to the Company at least two Business Days prior to the Closing Date;
(iiiiv) the Security Agreement, together with:
(A) certificates representing the Pledged Securities (if any) referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Intercompany Notes indorsed in blank,
(B) proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that are necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) certified copies of UCC, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Loan Party or Qualified Subsidiary as debtor and that are filed in those state and county jurisdictions in which any Loan Party or Qualified Subsidiary is organized or maintains its principal place of business, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Liens permitted by Section 7.01 or any other Liens acceptable to the Administrative Agent), and
(D) a fully executed Perfection Certificate substantially in the form of Exhibit I
(v) a Solvency Certificate in the form of Exhibit K shall have been executed and delivered by the chief financial officer of the Borrower;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party or is to be a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(vvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries 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 Effectorganization;
(viviii) a favorable opinion of Simpson, Thacher & Bxxxxxxx LLP counsel to the Loan Parties, addressed to the Administrative Agent and each Lender;
(ix) a favorable opinion of MxXxxxxxx Will & Exxxx LLP, local counsel to the Loan Parties acceptable to Agent in Texas, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(viix) the financial statements referenced in Section 5.05(a) and (d);
(xi) the Intercreditor Agreement, fully executed by the trustee for the Senior Secured Notes, the Administrative Agent, and acknowledged by the Loan Parties; and
(xii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with as to the execution, delivery and performance by Borrower and the validity against Borrower satisfaction of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified set forth in Sections 4.02(a4.01(e), (f), (g) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may requirej).
(bi) Without duplication of amounts described in clause (c) below, any All fees required to be paid to the Administrative Agent and the Lead Arrangers on or before the Closing Date shall have been paid to the extent then invoiced, with such invoices provided to the Company at least two Business Days prior to the Closing Date 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 Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s '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 an authorized officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of Agreement, each party Collateral Document and the Subsidiary Guaranty, sufficient in number for distribution to this Agreementthe Administrative Agent, each Lender and the Borrower;
(ii) a an original Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers authorized officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer authorized officer thereof authorized to act as a Responsible Officer an authorized officer on behalf of such Loan Party in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that Borrower is validly existing, and 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 be qualified in any jurisdiction other than its jurisdiction of organization could not reasonably be expected to have a Material Adverse Effect, including, certified copies of each Loan Party's Organization Documents, certificates of good standing and/or qualification to engage in business and tax clearance certificates (if any);
(v) original certificates, if any, evidencing all of the issued and outstanding shares of capital stock or other Equity Interest required to be pledged pursuant to the terms of the Pledge Agreement, which certificates shall be accompanied by undated stock powers duly executed in blank by each relevant pledgor;
(vi) a favorable evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents has been taken (including, without limitation, receipt of UCC-3 termination statements and UCC financing statements delivered in proper form for filing naming the Borrower and each other Loan Party (as appropriate) as the debtor, and the Administrative Agent, as the secured party, under all jurisdictions as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the first priority security interest of the Administrative Agent in the Collateral pursuant to the Collateral Documents);
(vii) opinions of special and local counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H hereto and such other matters concerning Borrower the Loan Parties and the Loan Documents in form and substance as the Required Lenders may reasonably satisfactory to Agentrequest (including, without limitation, opinions regarding the enforceability of the security interests created thereby);
(viiviii) a certificate of a Responsible Officer an authorized officer of Borrower each Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, Governmental Authorities and other Persons required in connection with the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and, required in connection with the Loan Documents and the transactions contemplated thereby, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiiix) copies of the financial statements referred to in Sections 5.05(a) and (b), and a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements November 9, 2004 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 a calculation of the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer Consolidated Leverage Ratio as of Borrower attesting to the Solvency of Borrower both before and after Closing Date giving Pro Forma effect to any Borrowing, or Credit Extension requested for such date and based on the issuance Consolidated EBITDA for the four consecutive fiscal quarters of any Letters of Credit, in each case, on the Borrower most recently ended at least 45 days prior to the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xiixi) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees and expenses required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, The Borrower shall have paid all reasonable fees, charges and disbursements of McGuireWoods LLP, counsel to Agent (directly to such counsel if requested by of the Administrative Agent) , to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such reasonable fees, charges and disbursements of counsel as shall constitute its reasonable estimate of such fees, charges and disbursements of counsel incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) There shall exist (i) no order, decree, judgment, ruling, injunction, writ, temporary restraining order or other order of any nature issued by any court or Governmental Authority or (ii) no action, suit, proceeding, investigation, litigation, claim, dispute or proceeding, pending, or to the knowledge of the Borrower threatened, at law or in equity, in arbitration or before any Governmental Authority by or against any Loan Party or against any of their respective properties or revenues, in each case, that (A) purports to affect, pertain to or enjoin or restrain the execution, delivery and performance of the Loan Documents or any transactions contemplated hereby or thereby, (B) either, individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect or (C) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated hereby or thereby. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Polymedica Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its any initial Credit Extension hereunder is subject to satisfaction or waiver by the applicable party of the following conditions precedent:
(a) Agent’s The Required Lenders’ 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 the signing 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 reasonably satisfactory to Agent the Required Lenders and each of the Lendersits legal counsel:
(i) executed counterparts Uniform Commercial Code financing statements, suitable in form and substance for filing in all places required by applicable law to perfect the Liens of this Agreement signed on behalf Collateral Agent under the Security Instruments as a second priority Lien under U.S. law as to items of each party to this AgreementCollateral in which a security interest may be perfected by the filing of financing statements;
(ii) a Note executed by Borrower in favor of each Lender requesting a Notelegal opinion from Xxxxxxxx and Xxxxx LLP;
(iii) such the secretary’s certificates, borrowing request and closing certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower set forth on the closing checklist attached hereto as 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 Borrower is a partyExhibit G;
(iv) a solvency certificate in the form of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall Exhibit I; and
(Av) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, except for (Bi) identify the Guarantees by name the Guarantors and title and bear (ii) those items that are specifically permitted herein to be delivered after the signatures Closing Date
(b) with respect to the Borrowers, all amounts due or outstanding in respect of each officer authorized any Indebtedness of the Target (other than as permitted to sign remain outstanding under the Closing Date Acquisition Documents or the Loan Documents, ) and the Initial Borrower and its Subsidiaries have been (C) contain appropriate attachments, including or substantially simultaneously with the certificate or articles of incorporation Borrower certified by the relevant authority initial funding of the jurisdiction of organization of Borrower Loans on the Closing Date, will be) paid in full, all commitments (if any) in respect thereof terminated, all guarantees (if any) thereof discharged and a true released and correct copy of its by-laws;
all security therefor (vif any) released or documentation to effect such documents release upon such repayment and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formed, and that 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 termination have been delivered to the extent Collateral Agent; provided, that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion of counsel to notwithstanding the Loan Parties acceptable to Agent addressed to Agent and each Lenderforegoing, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third partiescertain lien filings, if any, required in connection with the executionU.S. Patent and Trademark Office or the U.S. Copyright Office, delivery as applicable, on Intellectual Property owned by Target and performance by Borrower and the validity against Borrower its Subsidiaries relating to such Indebtedness of the Loan Documents Target (the “Specified Lien Filings”) shall not be required to which it is a partybe removed on or prior to the Closing Date, and Borrowers shall have seven (7) days following the Closing Date (or such consents, licenses and approvals shall longer period as may be agreed by the Required Lenders in full force and effect, their sole discretion) to file (or (Bto have filed) stating that no such consents, licenses or approvals are so requiredthe appropriate documents to cause the Specified Lien Filings to be removed;
(viiic) a certificate signed by a Responsible Officer (x) the consummation of Borrower certifying the incurrence of the Senior Indebtedness in accordance with the terms of the Senior Indebtedness Documents (A) it being agreed that the conditions specified in Sections 4.02(a) and (b) have been satisfiedoriginal aggregate principal amount of term loans funded on the Closing Date shall not to exceed $105,000,000), (By) that there has been no event or circumstance since the date consummation of equity contributions by Sponsor and its co-investors (together with rollover equity contributions from the selling shareholders and management of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in Target) of not less than 35% of the aggregate, a Material Adverse Effect; total pro forma capital structure of the Initial Borrower and its Subsidiaries (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowingthe Transactions) and (z) the consummation of, or substantially simultaneously with, but after, the issuance initial funding of any Letters of Credit, in each case, Loans on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will beAcquisition in accordance with the terms of the Closing Date Acquisition Documents, paid in fullwithout any waiver, dischargedamendment, supplement or other modification of any provision of the Purchase Agreement that is material and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or adverse to the Lenders unless the Required Lenders reasonably may requirehave consented thereto; provided, that (1) any reduction in the purchase price for the Closing Date Acquisition set forth in the Purchase Agreement by less than fifteen percent (15%) is not material and adverse to the interests of the Lenders, (2) any increase in the purchase price for the Closing Date Acquisition set forth in the Purchase Agreement is not material and adverse to the interests of the Lenders so long as any such purchase price increase is funded with the proceeds of equity contributions or proceeds of the Senior Indebtedness (it being understood and agreed that no purchase price adjustments or similar adjustment provisions set forth in the Purchase Agreement constitute a reduction or increase in the purchase price of the Closing Date Acquisition for purposes of this proviso), (3) the granting by Holdings of any consent under the Purchase Agreement that is not materially adverse to the interests of the Lenders shall not constitute an amendment or waiver for purposes of this clause (z) and (4) any change to the definition of “Material Adverse Effect” in the Purchase Agreement shall be deemed materially adverse to the Lenders.
(bd) Without duplication of amounts described in clause All accrued costs, fees and expenses (c) below, any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid including all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, prior to or on the Closing DatePennantPark, plus such additional amounts of such reasonable out-of-pocket fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable out-of-pocket fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower Borrowers and AgentPennantPark) and the fees and expenses of any other advisors) and other compensation due and payable to the Collateral Agent or PennantPark on or before the Closing Date shall have been paid (or deducted from the initial funding of the Loans hereunder), to the extent invoiced prior to the Closing Date (except as otherwise reasonably agreed by the Initial Borrower).
(e) The Lenders shall have received (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Target and its Subsidiaries for the Fiscal Year ended December 31, 2011 and the Fiscal Year ended December 31, 2012 and (ii) unaudited consolidated balance sheets and related statements of income and cash flows of the Target and its Subsidiaries for the month ended November 30, 2013 (and the corresponding period of the prior Fiscal Year, each prepared in accordance with GAAP; it being agreed and understood that as of the date hereof, the Lenders have received such documents.
(f) The Lenders shall have received an unaudited pro forma consolidated balance sheet of the Borrowers as of the date of the most recent consolidated balance sheet delivered pursuant to clause (e) above and related unaudited pro forma combined statement of income of the Target and its Subsidiaries for the twelve-month period ending on such balance sheet date, in each case adjusted to give effect to the Transactions as if the Transactions had occurred as of such date (in the case of such pro forma balance sheet) or at the beginning of such period (in the case of the pro forma statement of income); it being agreed and understood that as of the date hereof, the Lenders have received such documents.
(g) The representations and warranties (i) set forth in Articles III and IV of the Purchase Agreement made by the Target and the Sellers in the Purchase Agreement as are material to the interests of the Lenders shall be true and correct in all respects but only to the extent that Initial Borrower (or any of its Affiliates) has the right to terminate its obligations under the Purchase Agreement (or refuse to consummate the Purchase Agreement) as a result of the breach of such representation or warranty in the Purchase Agreement (the “Specified Acquisition Agreement Representations”) and (ii) of the Initial Borrower contained in Sections 5.01(a), 5.01(b)(ii) (solely as it relates to the Loan Documents), 5.02(a) (solely as it relates to the Loan Documents), 5.03, 5.04(d), 5.13, 5.15, 5.19 of this Agreement and Section 5(j) of the Security Agreement (solely with respect to the first two sentences thereof) (the “Specified Representations”) shall be true and correct in all material respects (without duplication of any materiality qualified contained therein); provided, that notwithstanding anything to the contrary contained herein or in any other Loan Document to the contrary, solely for the purpose of this clause (g), to the extent any of the Specified Acquisition Agreement Representations are qualified or subject to “material adverse effect”, the definition thereof shall be “Material Adverse Effect”, as defined in the Purchase Agreement.
(h) The Initial Borrower shall have provided the documentation and other information to the Collateral Agent (to the extent reasonably requested by the Collateral Agent in writing at least eight (8) Business Days prior to the Closing Date) that are required by regulatory authorities under the applicable “know-your-customer” rules and regulations, including the PATRIOT Act, in each case at least five (5) days prior to the Closing Date.
(i) Since December 29, 2013, there shall not have occurred a Material Adverse Effect (as defined in the Purchase Agreement). Notwithstanding anything herein to the contrary, the terms of the Loan Documents shall be in a form such that they do not impair availability of the Loans on the Closing Date if the conditions set forth in Section 4.01 are satisfied or waived (it being understood that to the extent any security interest in Collateral (including the creation or perfection of any security interest) (other than (x) grants of security interests in Collateral subject to the Uniform Commercial Code that may be perfected by the filing of Uniform Commercial Code financing statements and (y) the delivery of equity certificates for certificated Equity Interests of Holdings’ Domestic Subsidiaries that are part of the Collateral) is not or cannot be provided or perfected on the Closing Date after the Borrowers’ use of commercially reasonable efforts to do so, without undue burden or expense, the delivery of such Collateral (and granting and perfecting of security interests therein) shall not constitute a condition precedent to the availability of the Loans on the Closing Date but shall be required to be delivered within 90 days after the Closing Date (or such later date as may be reasonably agreed by the Required Lenders in their sole discretion) pursuant to arrangements to be mutually agreed). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Collateral Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of each party to this Agreement;
(ii) a Note executed by Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as 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 Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formed, and that 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 counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).
(d) The Closing Date shall have occurred on or before October 8, 2013.
(e) Agent shall have received, in form and substance satisfactory to it, such other assurances, certificates, documents or consents related to the foregoing as Agent or the Required Lenders reasonably may require. Without limiting the generality of the provisions of the last sentence of Section 9.03(d), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless 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 (Unitil Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of Agreement, the Guaranty and the Contribution Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that each of the Borrower and each Consolidated Subsidiary is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxx Lord Xxxxxxx & Xxxxxxx or other attorney reasonably acceptable to Administrative Agent, as counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit I and such other matters concerning Borrower the Loan Parties and the Loan Documents in form and substance as the Required Lenders may reasonably satisfactory to Agentrequest;
(viivi) a certificate of a Responsible Officer of Borrower each Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effectcurrent Debt Ratings;
(ixviii) a certificate duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2011, signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing DateBorrower;
(xix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xiix) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before September 22, 2011. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to Agent and each of the LendersAdministrative Agent:
(i) executed counterparts of this Agreement signed on behalf of and each party Guarantee, sufficient in number for distribution to this Agreementthe Administrative Agent, each Lender and the Borrower;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting such a Note, each in a principal amount equal to such Lender’s Commitment;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of an Officer’s Certificate certified by Responsible Officers of the Borrower as Agent may reasonably require evidencing certifying, inter alia, (1) true and correct copies of resolutions adopted by the identity, authority and capacity board of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and managers or other appropriate body of the other Loan Documents to which Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance by the Borrower of the Loan DocumentsDocuments to which it is or will be a party and the consummation of the transactions contemplated thereby, (B) identify by name and title and bear authorizing the signatures Responsible Officers of each officer authorized the Borrower to sign negotiate the Loan DocumentsDocuments on behalf of the Borrower, and (C) contain appropriate attachmentsauthorizing the Responsible Officers of the Borrower to execute and deliver the Loan Documents and any related documents, including including, without limitation, any Security Document or other pledge agreement, security agreement or other document contemplated by this Agreement; (2) the certificate or articles incumbency and, if such Responsible Officer is an individual, specimen signatures of incorporation the Responsible Officers of the Borrower certified executing any Loan Documents to which it is a party, upon which Officer’s Certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the relevant authority of the jurisdiction of organization of Borrower Borrower; and a true and correct copy of its by-laws;
(v3) such documents and certifications evidence as the Administrative Agent may reasonably require to evidence verify that the Borrower is duly organized or formed, and that Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownershipin which it is required to be qualified to engage in business, lease or operation including any required approvals of properties or any applicable Government Authority, certified copies of the conduct Borrower’s Organization Documents, certificates of its business requires such qualificationorganization, except good standing and/or qualification to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectengage in business;
(viiv) a favorable opinion an Officer’s Certificate certified by Responsible Officers of counsel to each Guarantor certifying, inter alia, (1) true and correct copies of resolutions adopted by the Loan Parties acceptable to Agent addressed to Agent and each Lenderboard of directors, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate board of a Responsible Officer managers, general partner or other appropriate body of Borrower either such Guarantor (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with authorizing the execution, delivery and performance by Borrower and the validity against Borrower such Guarantor of the any Loan Documents to which it is or will be a party and the consummation of the transactions contemplated thereby, (B) authorizing the Responsible Officers of such Guarantor to negotiate the Loan Documents to which such Guarantor is or will be a party on behalf of such Guarantor, and (C) authorizing the Responsible Officers of such Guarantor to execute and deliver the Loan Documents and any related documents, including, without limitation, any pledge agreement, security agreement or other document contemplated by this Agreement to which such Guarantor is or will be a party; (2) the incumbency and, if such Responsible Officer is an individual, specimen signatures of the Responsible Officers of such Guarantor executing any Loan Documents to which such Guarantor is or will be a party, upon which Officer’s Certificate the Administrative Agent and such consents, licenses and approvals the Lenders shall be entitled to rely until informed of any change in writing by such Guarantor; and (3) such evidence as the Administrative Agent may reasonably require to verify that each such Guarantor is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including any required approvals of any applicable Government Authority, certified copies of each such Guarantor’s Organization Documents, certificates of organization, good standing and/or qualification to engage in business;
(1) executed counterparts of each of the Security Documents the Administrative Agent may reasonably require, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower, (2) all appropriate evidence required by the Administrative Agent in its sole discretion necessary to determine that the Administrative Agent (for its benefit and the benefit of the L/C Issuer and the Lenders) shall have an Acceptable Security Interest in the Collateral, including, without limitation, physical delivery of any certificated securities or other Collateral for which possession is the required means for perfection under the Uniform Commercial Code as in effect on the date hereof in the State of New York, along with any related stock powers or other similar grants in favor of the Administrative Agent, (3) delivery of any control agreements or other similar agreements related to any accounts or other Collateral for which control is the required means for perfection under the Uniform Commercial Code as in effect on the date hereof in the State of New York, and (4) the Agent shall be satisfied that the Liens granted to it under the Security Documents are Acceptable Security Interests and that all actions or filings necessary to protect, preserve and validly perfect such Liens have been made, taken or obtained, as the case may be, and are in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiivi) a certificate an Officer’s Certificate signed by a Responsible Officer of the Borrower certifying (A1) that the conditions specified in Sections 4.02(a), (b) and (bc) have been satisfied, (B2) the Properties of the Loan Parties are insured with financially sound and reputable insurance companies in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Loan Parties operate, and (3) that there has been no event or circumstance since immediately prior to and after giving effect to the date transactions contemplated by the Loan Documents, the Borrower shall be Solvent.;
(vii) an opinion of the Audited Financial Statements that has had or could be reasonably expected counsel to have, either individually or each Loan Party each substantially in the aggregateform of Exhibits F-1, a Material Adverse Effect; F-2 or F-3;
(viii) copies of duly executed UCC-1 financing statements and (C) all insurance required other requisite filing documents necessary to be maintained perfect the Liens granted pursuant to the Loan Security Documents has been obtained and is duly executed releases or assignments of Liens and UCC-3 financing statements in effectrecordable form, covering all of the Collateral, as may be necessary to reflect that the Liens granted to the Administrative Agent for the benefit of the Lenders are first and prior Liens, except for the Liens permitted under Section 7.01;
(ix) a certificate signed by a Responsible Officer copies of Borrower attesting all environmental surveys or reports relating to the Solvency of Borrower both before real Property owned or leased by each Loan Party as deemed necessary or prudent by the Administrative Agent in scope and after giving effect results acceptable to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing DateAdministrative Agent;
(x) evidence that all insurance required to be maintained pursuant legal matters incident to the Loan Documents has been obtained transaction herein contemplated shall be reasonably satisfactory to counsel for the Administrative Agent and is in effectthe Lenders;
(xi) evidence that all Indebtedness copies of (1) Audited Financial Statements for the fiscal year ended December 31, 2003; and all Liens (other than Indebtedness permitted under Section 7.02 2) unaudited interim consolidated financial statements of the Parent Guarantor and Liens permitted under Section 7.01) have beenits consolidated Subsidiaries, or concurrently with for the Closing Date will befiscal quarters ending March 31, paid in full2004 and June 30, discharged2004 including, without limitation any management discussion and released; andanalysis related thereto;
(xii) confirmation that on the Closing Date, the Available Aggregate Commitment shall be at least U.S.$25,000,000;
(xiii) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require; and
(xiv) executed copies of the BMO ISDA Master Agreement.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Issuer shall have consummated the IPS Transaction and proceeds therefrom shall have been applied to the repayment in full of all existing indebtedness of each of the Loan Parties, including, but not limited to, those certain term loans of Teton Power Funding LLC. Pursuant to the IPS Transaction, the Issuer shall have delivered to the Administrative Agent the following documents, each in form and substance satisfactory to the Administrative Agent:
(i) a pro forma consolidated balance sheet of the Parent Guarantor as delivered in connection with the consummation of the IPS Transaction;
(ii) a copy of the final IPS Prospectus;
(iii) a copy of the “Independent Engineer’s Report” referred to in the IPS Prospectus; and
(iv) an Officer’s Certificate certified by Responsible Officers of the Issuer certifying that the proceeds of the IPS Transaction have been applied to the repayment in full of all existing indebtedness, if any, of the Project Holding Entities.
(e) Each Lender shall be satisfied in its sole discretion with the proposed plans and arrangements of the Borrower with respect to the continued operation and maintenance of any Projects being directly or indirectly operated by the Borrower as of the Closing Date.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedentprecedent except as otherwise agreed between the Borrowers and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) Party and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf of and each party to this AgreementGuaranty;
(ii) a Note executed by Borrower the Borrowers in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) evidence that the elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date have been satisfied, the Intercreditor Agreement and each Collateral Document set forth on Schedule 1.01B required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party, as applicable thereto, together with:
(A) to the extent required under the Collateral and Guarantee Requirement, opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent and Collateral Agent; and
(B) evidence that all other actions, searches, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; provided that to the extent any lien search, Guarantee, Collateral or insurance referred to in clause (vii) below (other than pledge and perfection of security interests in Equity Interests of Domestic Subsidiaries of the Borrowers and the Guarantors (to the extent required hereunder) and other assets with respect to which a Lien may be perfected by the filing of a financing statement under the UCC) is not provided on the Closing Date after the Borrowers’ use of commercially reasonable efforts to do so, the delivery of such lien search, Guarantee, Collateral or insurance referred to in clause (vii) below shall not constitute a condition precedent to the availability of the Revolving Credit Loans on the Closing Date but shall be required to be delivered after the Closing Date pursuant to Section 6.13(c) or 6.18 (it being understood and acknowledged by the Borrowers that, due to the eligibility requirements set forth in the definitions of “Eligible Accounts” and “Eligible Inventory”, Excess Availability may be adversely affected if the above-mentioned conditions are not satisfied);
(iv) (A) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) party or is to be a certificate of Borrower, dated party on the Closing Date Date, and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear a good standing certificate from the signatures applicable governmental authority of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the Party’s jurisdiction of incorporation, organization of Borrower and or formation, each dated a true and correct copy of its by-lawsrecent date prior to the Closing Date;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formed(A) an opinion from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, and that 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 New York counsel to the extent that failure Loan Parties, substantially in the form of Exhibit E and (B) opinions of local counsel to do so could not the Loan Parties reasonably be expected acceptable to have a Material Adverse Effectthe Administrative Agent with regard to such matters of law as the Administrative Agent shall reasonably request;
(vi) a favorable opinion of counsel Solvency Certificate attesting to the Loan Parties acceptable to Agent addressed to Agent Solvency of the Lead Borrower and each Lender, its Restricted Subsidiaries (taken as a whole) on the Closing Date after giving effect to the matters set forth concerning Borrower and Transactions, from the Loan Documents in form and substance reasonably satisfactory to Agentchief financial officer of the Lead Borrower;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 evidence that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and that the Administrative Agent has been named as loss payee and additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(viii) certified copies of the Merger Agreement and the Senior Secured Bridge Loan Documents, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Lead Borrower that such documents are in full force and effect as of the Closing Date;
(ix) a certificate signed by a Responsible Officer of Borrower attesting Committed Loan Notice relating to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;initial Credit Extension; and
(x) evidence that all insurance required to be maintained pursuant copies of a recent Lien and judgment, tax, patent and trademark searches in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may requireParties.
(b) Without duplication of amounts described in clause (c) below, any All fees and expenses required to be paid on or before hereunder, under the Fee Letter and invoiced at least three business days prior to the Closing Date shall have been paidpaid in full in cash or will be paid on the Closing Date out of the initial Credit Extension.
(c) Unless waived by AgentPrior to or simultaneously with the initial Credit Extension, (i) the Equity Contribution shall have been funded in full to Holdings and Holdings shall have contributed such amount to the Lead Borrower in the form of cash equity, (ii) the Lead Borrower shall have paid all reasonable feesreceived no less than $1,010,000,000 of gross proceeds from (i) the funding of the Senior Secured Bridge Loans in accordance with the Senior Secured Bridge Loan Documents and (iii) the Merger shall be consummated in accordance with the terms of the Merger Agreement (and no provision of the Merger Agreement shall have been waived, charges amended, supplemented, consented to or otherwise modified in a manner material and disbursements of counsel to Agent (directly to such counsel if requested by Agent) adverse to the extent invoicedLenders without the consent of the Administrative Agent and the Bookrunners (which consent shall not be unreasonably withheld or delayed)).
(d) Concurrently with the consummation of the Merger, all of the Indebtedness of the Company required to be repaid or refinanced in accordance with Section 5.1 of the Merger Agreement shall have been repaid or refinanced, all commitments to extend credit pursuant to the agreements governing such Indebtedness shall have been terminated and all Liens or other security interests securing such Indebtedness shall have been terminated and released by the lenders thereunder, and the Administrative Agent shall have received evidence thereof.
(e) The Administrative Agent shall have received (i) the audited consolidated balance sheets of the Company and its Subsidiaries for the three fiscal years ended respectively December 31, 2005, December 31, 2006 and December 31, 2007, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal years of the Company and its Subsidiaries, including the notes thereto (the “Audited Financial Statements”), (ii) unaudited consolidated balance sheets and related statements of income and cash flows of the Company and its Subsidiaries for each subsequent fiscal quarter ending more than 45 days prior to or the Closing Date (the “Unaudited Financial Statements”) and (iii) the Pro Forma Financial Statements.
(f) The Administrative Agent shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that has been reasonably requested at least 10 days in advance of the Closing Date.
(g) The Administrative Agent shall have received a Borrowing Base Certificate dated as of the Closing Date, relating to the month ended on September 30, 2008, and executed by the Treasurer of the Lead Borrower, and such Borrowing Base Certificate shall reflect an Excess Availability (after giving effect to (without duplication) the Transactions and the Credit Extensions made on the Closing Date) of at least $75,000,000.
(h) Since December 31, plus such additional amounts of such fees2007, charges and disbursements as there shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent)have been no Closing Date Material Adverse Effect.
Appears in 1 contract
Samples: Credit Agreement (Ahny-Iv LLC)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals originals, electronic copies or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as of the Closing Date as the Administrative Agent may reasonably 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 the Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower as of the Closing Date is validly existing, existing and in good standing and qualified to engage in business in each jurisdiction where its ownership, lease state of incorporation 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 and/or domicile;
(viv) a favorable opinion of Foley & Lardner LLP, counsel to the Loan Parties acceptable to Agent Borrower, addressed to Agent the Axxxxxstrxxxxx Xgent and each Lender, as to matters concerning the matters set forth concerning Borrower and the Loan Documents in form and substance (including enforceability of the Loan Documents under New York law) as the Required Lenders may reasonably satisfactory to Agentrequest;
(viivi) a certificate of a Responsible Officer of the Borrower as of the Closing Date either (A) attaching copies of confirming that all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by the Borrower and the validity against Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effecthave been obtained, or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings of the Borrower, which must be at least BB+ by S&P and Ba1 by Moody's;
(vixx) xxxumentation evidencing completion of all insurance required to be maintained pursuant aspects of the Restructuring other than the Exchange, in form and substance satisfactory to the Loan Documents has been obtained and is in effectAdministrative Agent;
(ix) a certificate signed by a Responsible Officer of Borrower attesting evidence that the conditions precedent to the Solvency of Borrower both before and after giving effect lenders' commitment to any Borrowing, or lend under the issuance of any Letters of Credit, in each case, on the Closing DateFNT Credit Agreement have been satisfied;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents Existing Credit Agreement has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, is being terminated and releasedthat obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being satisfied; and
(xiixi) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause Any fees (cincluding upfront fees to the Lenders) below, any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letter shall be in full force and effect.
(c) Unless waived by Agent, Borrower The Closing Date shall have paid all reasonable feesoccurred on or before October 21, charges and disbursements 2005. Without limiting the generality of counsel 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 Agent (directly to such counsel if requested by Agent) to the extent invoicedhave consented to, prior to approved 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 accepted or to be incurred satisfied with, each document or other matter required thereunder to be consented to or approved by it through or acceptable or satisfactory to a Lender unless the closing proceedings (provided that Administrative Agent shall have received notice from such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent)Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Fidelity National Financial Inc /De/)
Conditions of Initial Credit Extension. The obligation of each Lender and the L/C Issuer and each Lender to make its any initial Credit Extension hereunder is subject to satisfaction or waiver by the applicable party of the following conditions precedent:
(a) Administrative Agent’s receipt of the followingfollowing items, where applicable, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly duly executed by a Responsible Officer of the signing 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 reasonably satisfactory to Agent and each of the LendersAdministrative Agent:
(i) executed counterparts Uniform Commercial Code financing statements, suitable in form and substance for filing in all places required by applicable law to perfect the Liens of this Agreement signed on behalf Administrative Agent under the Security Instruments as a first priority Lien (subject to Permitted Liens) as to items of each party 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 Administrative Agent under such Security Instruments as a first priority Lien (subject to Permitted Liens) in and to such other Collateral as Administrative Agent may require. Notwithstanding the foregoing or any other provision in any Loan Documents to the contrary, to the extent a perfected security interest in any Collateral (the security interest in respect of which cannot be perfected by means of (i) the filing of a UCC financing statement, (ii) the making of a U.S. federal intellectual property filing or (iii) delivery of possession of Stock or other certificated security of the Borrower or any Guarantor (with respect to this Agreementclause (iii), only to the extent received by the Borrower after Borrower’s use of commercially reasonable efforts to procure the delivery of such certificates prior to the Closing Date) is not able to be provided on the Closing Date after Borrower’s use of commercially reasonable efforts to do so, the perfection of such security interest in such Collateral will not constitute a condition precedent to the availability of the initial Loans on the Closing Date;
(ii) a Note executed by Uniform Commercial Code, tax, judgment and other related search results against the property of the Borrower in favor and each Guarantor evidencing the absence of each Lender requesting a Noteliens on its property except as permitted under the Loan Documents;
(iii) a fully executed pay-off letter reasonably satisfactory to Administrative Agent confirming that all obligations owing by any Loan Party in respect of the Existing Agreement (other than contingent indemnity and reimbursement obligations for which a claim has not been asserted) will be cancelled when repaid in full from the proceeds of the initial Loans and all Liens upon any of the property of the Loan Parties or any of their Subsidiaries securing the payment and performance of the “Repaid Indebtedness” (as defined in the Closing Date Purchase Agreement) shall be terminated automatically upon such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as 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 Borrower is a party;payment; and
(iv) each agreement, instrument, document, certificate, opinion and other items set forth on the closing checklist attached hereto as Exhibit G (other than agreements, documents, instruments and other items noted therein to be delivered after the Closing Date).
(b) To the extent invoiced prior to the Closing Date, Borrower shall have (or shall substantially concurrently with the initial funding of the Loans on the Closing Date) paid the fees and expenses required to be paid on the Closing Date pursuant to the Fee Letters and this Agreement, including by offsetting such amounts against the proceeds of the initial funding of the Loans on the Closing Date.
(c) The Administrative Agent shall have received, at least three (3) Business Days prior to the Closing Date (to the extent requested from the Borrower at least ten (10) Business Days prior to the Closing Date), all documentation and other information with respect to the Loan Parties that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
(d) The Administrative Agent shall have received evidence that the Second Lien Term Lenders have issued the Second Lien Term Loans in the aggregate principal amount of $40,000,000 to the Borrower and an executed copy of the Second Lien Loan Documents, together with a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrowerthe Borrower certifying that each such document is a true, which shall correct, and complete copy thereof.
(Ae) certify as to resolutions of its board of directors, authorizing the execution, delivery The corporate and performance capital structure of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formed, and that 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 Subsidiaries shall be expected to have a Material Adverse Effect;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to the Administrative Agent;
, including without limitation: (viia) a certificate minimum equity contributions of a Responsible Officer at least 50% (the “Equity Contribution”) (which may include (x) equity contributions of Borrower either $100,000,000 from Holdings, (Ay) attaching copies rollover of all material consents, licenses $170,000,000 from the Sponsor and approvals management and (z) the Holdings Preferred Equity) of third parties, if any, required in connection with the execution, delivery and performance by total capitalization of the Borrower and its subsidiaries, after giving effect to the validity against Borrower of Transactions on the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) Closing Date and (b) cash proceeds of $40,000,000 from the Second Lien Term Loan Facility on terms and conditions acceptable to the Administrative Agent.
(f) The Closing Date Acquisition shall close prior to or concurrently with the initial Borrowing hereunder without the waiver by Merger Sub of any conditions to its obligations under the Closing Date Purchase Agreement that are material to the Lenders; provided that (i) increases in purchase price if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and shall not require the consent of the Arranger and (ii) decreases in purchase price by not more than 10% shall not be deemed to be materially adverse to the interests of the Lenders and shall not require the consent of the Arranger if applied (x) first, to reduce the aggregate Equity Contribution until such time as the Equity Contribution equals 50%, and (y) second, to reduce the Term Loan. It is agreed and understood that no purchase price or similar adjustment provisions set forth in the Closing Date Purchase Agreement shall constitute any decrease or increase in the purchase price.
(g) Each Specified Closing Date Purchase Agreement Representation shall be true and correct in all material respects (without duplication of any materiality qualifiers) on the Closing Date (except in the case of any such Specified Closing Date Purchase Agreement Representations which expressly relate to a prior date, in which case such Specified Closing Date Purchase Agreement Representations shall be true and correct in all material respects (without duplication of any materiality qualifiers) as of such date).
(h) The Specified Representations shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein).
(i) The Administrative Agent shall have been satisfiedreceived (i) audited annual financial statements for FTS (including an income statement, a balance sheet, and a cash flow statement) for the Fiscal Year ended December 31, 2015, (Bii) that there has been no event or circumstance five-year projected financial statements, (iii) a closing balance sheet adjusted to give effect to the Transactions, and (iv) interim unaudited financial statements for the Fiscal Months ended April 30, 2016 and May 31, 2016, and each Fiscal Month ending thereafter at least 30 days prior to the Closing Date, in each case, in form and substance acceptable to the Administrative Agent.
(j) No Material Adverse Effect (as defined in the Closing Date Purchase Agreement) shall have occurred since the date of the Audited Financial Statements Closing Date Purchase Agreement and no change or event shall have occurred that has had or could would reasonably be reasonably expected to have, either individually or result in the aggregate, such a Material Adverse Effect; and Effect (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is as defined in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may requirePurchase Agreement).
(b) Without duplication of amounts described in clause (c) below, any fees required to be paid on or before the Closing Date shall have been paid.
(ck) Unless waived by Administrative Agent, Borrower shall have paid all reasonable and documented fees, charges and disbursements of one counsel to Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Closing Date.
(l) The Administrative Agent shall have received a certificate with evidence satisfactory to the Administrative Agent that after giving effect to (i) the initial Credit Extension hereunder, plus such additional amounts (ii) consummation of such feesthe Transactions and payment of all fees and expenses in connection therewith, charges (1) the Consolidated Total Net Leverage Ratio shall not be greater than 4.00 to 1.00 and disbursements (2) the Consolidated First Lien Net Leverage Ratio shall not be greater than 3.00 to 1.00, calculated as of the twelve month period ending on June 30, 2016.
(m) The Administrative Agent shall constitute its reasonable estimate have received satisfactory evidence that Borrower is in compliance with operating regulations established by, and registered in good standing with, Visa and MasterCard; it being understood and agreed that the certificate delivered to the Administrative Agent prior to the date hereof constitutes satisfactory evidence thereof. Without limiting the generality of such feesthe provisions of Section 9.04, charges and disbursements incurred for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be incurred satisfied with, each document or other matter required thereunder to be consented to or approved by it through or acceptable or satisfactory to a Lender unless Administrative Agent shall have received notice from such Lender prior to the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent)proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (CardConnect Corp.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf of each party to this Agreementand the Guaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) the Security Agreement and the Perfection Certificate, duly executed by each Loan Party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) opinions from each jurisdiction of incorporation and opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located with respect to the enforceability and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent;
(C) evidence that the Intercompany Note executed by and among Holdings and each of its Subsidiaries, accompanied by instruments of transfer undated and endorsed in blank have been delivered to the Collateral Agent; and
(D) evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) party or is to be a certificate of Borrower, dated party on the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-lawsDate;
(v) such documents opinion from Ropes and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formedXxxx LLP, and that 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 New York counsel to the Loan Parties acceptable to Agent addressed to Agent substantially in the form of Exhibit I, and each Lender, as to local counsel opinions in the matters jurisdictions set forth concerning Borrower and the Loan Documents on Schedule 4.01(a)(v) in form and substance reasonably satisfactory to the Administrative Agent;
(vi) there has been no change, effect, event or occurrence since December 31, 2004, that has had or could reasonably be expected to result in a Material Adverse Change and certified to that effect;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with attesting to the execution, delivery and performance by Borrower and the validity against Borrower Solvency of the Loan Documents Parties (taken as a whole) after giving effect to which it is a partythe Transaction, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredfrom the Chief Financial Officer of the Borrower;
(viii) a certificate signed certified copy of the Sponsor Management Agreement, including a certification by a Responsible Officer of the Borrower certifying (A) that the conditions specified such agreement is in Sections 4.02(a) full force and (b) have been satisfied, (B) that there has been no event or circumstance since the date effect as of the Audited Financial Statements Closing Date;
(ix) evidence that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance (including title insurance in form and substance reasonably acceptable to the Administrative Agent) required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and that the Administrative Agent has been named as loss payee and additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ixx) a certificate signed completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the Mortgaged Properties;
(xi) certified copies of the Merger Agreement, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower attesting to the Solvency that such documents are in full force and effect as of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurancesa Committed Loan Notice or Letter of Credit Application, certificatesas applicable, documents, consents or opinions as Agent or relating to the Required Lenders reasonably may requireinitial Credit Extension.
(b) Without duplication of amounts described in clause (c) below, any All fees and expenses required to be paid on or hereunder and invoiced before the Closing Date shall have been paidpaid in full in cash.
(c) Unless waived Prior to or simultaneously with the initial Credit Extension, (i) the Equity Contributions shall have been funded in full in cash; (ii) Merger Sub shall have received (whether directly as a result of the Equity Contribution or as a result of an equity contribution by AgentHoldings) cash proceeds from the Equity Contributions in an aggregate amount equal to at least $294.7 million; and (iii) the Merger shall be consummated in accordance with the terms of the Merger Agreement (without waiver, amendment, supplement or other modification that is material and adverse to the Lenders) and in compliance with applicable material Laws and regulatory approvals.
(d) Prior to or simultaneously with the initial Credit Extensions, the Borrower shall have paid received at least $200,000,000 in gross cash proceeds from the issuance of the Senior Subordinated Notes.
(e) Prior to or simultaneously with the initial Credit Extensions, the Borrower shall have terminated the Existing Credit Agreement and taken all reasonable feesother necessary actions such that, charges after giving effect to the Transaction, (i) Holdings and disbursements its Subsidiaries shall have outstanding no Indebtedness or preferred Equity Interests other than (A) the Loans and L/C Obligations, (B) the Senior Subordinated Notes and (C) Indebtedness listed on Schedule 7.03(b) and (ii) the Borrower shall have outstanding no Equity Interests (or securities convertible into or exchangeable for Equity Interests or rights or options to acquire Equity Interests) other than common stock owned by Holdings and preferred stock owned by Holdings, with terms and conditions reasonably acceptable to the Arrangers to the extent material to the interests of counsel the Lenders.
(f) The Arrangers and the Lenders shall have received (i) the Audited Financial Statements and the audit report for such financial statements (which shall not be subject to Agent any qualification) and (directly to such counsel if requested by Agentii) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of Target and its Subsidiaries for (A) each subsequent fiscal quarter ended at least forty-five (45) days before the Closing Date (and comparable periods for the prior fiscal year) and (B) to the extent invoicedreasonably available and, prior in any event, excluding footnotes, each fiscal month after the most recent fiscal period for which financial statements were received by the Arrangers and the Lenders as described above (collectively, the “Unaudited Financial Statements”), which financial statements described in clauses (i) and (ii)(A) shall be prepared in accordance with GAAP.
(g) The Arrangers and the Lenders shall have received the Pro Forma Financial Statements.
(h) The Arrangers and the Lenders shall have received a certificate from a Responsible Officer in form and substance reasonably satisfactory to the Administrative Agent dated the Closing Date and signed by the chief financial officer of the Borrower.
(i) The Arrangers and the Lenders shall have received evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem reasonably necessary or desirable in order to create a valid and subsisting perfected Lien on the Closing Dateproperty and/or rights described therein in favor of the Administrative Agent or the Collateral Agent (as appropriate) for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent.
(j) The Arrangers and the Lenders shall have received fully paid Chicago Title Insurance Corporation Lender’s Extended Coverage title insurance policies or the equivalent or other form available in each applicable jurisdiction (the “Mortgage Policies”) in form and substance, plus such additional amounts with endorsements and in amount, reasonably acceptable to the Administrative Agent (not to exceed the value of such feesthe real properties covered thereby), charges issued, coinsured and disbursements as shall constitute its reasonable estimate of such feesreinsured by title insurers reasonably acceptable to the Administrative Agent, charges and disbursements incurred or insuring the Mortgages to be incurred valid subsisting first priority Liens on the property described therein, free and clear of all defects and encumbrances, subject to Liens permitted by it through Section 7.01, and providing for such other affirmative insurance (including endorsements for future advances under the closing proceedings (provided that Loan Documents) and such estimate shall not thereafter preclude a final settling of accounts between Borrower coinsurance and Agent)direct access reinsurance as the Administrative Agent may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Transcultural Health Develpment, Inc.)
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:precedent (unless compliance is waived in accordance with Section 11.01):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies, faxes or telecopies scanned pdf files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of each party to this Agreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) the Security Agreement (General Partner), the Security Agreement (Parent and Subsidiaries), the General Partner Guaranty, the Subsidiary Guaranty, and all other Collateral Documents required by the Administrative Agent (including any amendments (including any amendments as may be necessary to reflect the increased amount of the Aggregate Commitment), modifications, restatements, confirmations, or reaffirmations of any “Collateral Documents” executed and delivered in connection with the Existing Credit Agreement, as the Administrative Agent may reasonably require, executed by the Loan Parties party thereto in appropriate form for recording, where necessary, together with evidence that such reasonable actions as are necessary, or in the opinion of the Administrative Agent or the Required Lenders desirable, to perfect the Administrative Agent’s Liens in the Collateral have been taken or arrangements therefor reasonably satisfactory to the Administrative Agent have been made;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party or is to be a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that Borrower 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 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;
(vi) a favorable opinion of Proskauer Rose LLP, counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower each Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; , and (C) that as of the Closing Date no Default (as defined in the Existing Credit Agreement) exists under the Existing Credit Agreement;
(ix) a certificate of the Borrower confirming that (A) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
, (ixB) a certificate signed by a Responsible Officer there are no past due premiums in respect of Borrower attesting any such insurance, (C) the Administrative Agent, on behalf of the Secured Parties, is named as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the Solvency assets and properties of the Loan Parties that constitute Collateral, and (D) all (1) standard flood hazard determination forms and, (2) if any property is located in a special flood hazard area, (x) notices to (and confirmations of receipt by) the Borrower both before as to the existence of a special flood hazard and, if applicable, the unavailability of flood hazard insurance under the National Flood Insurance Program and after giving effect to any Borrowing(y) evidence of applicable flood insurance, or the issuance of any Letters of Creditif available, in each casecase in such form, on such terms and in such amounts as required by Flood Insurance Laws or as otherwise reasonably required by the Closing DateAdministrative Agent have been delivered;
(x) evidence that all insurance required to be maintained pursuant to upon the Loan Documents has been obtained reasonable request of any Lender, documentation and is other information of the Borrower so requested in effect;
(xi) evidence that all Indebtedness connection with applicable “know your customer” and all Liens (other than Indebtedness permitted under Section 7.02 anti-money-laundering rules and Liens permitted under Section 7.01) have beenregulations, or concurrently with including, without limitation, the Closing Date will be, paid in full, dischargedAct, and releaseda Beneficial Ownership Certification of any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation; and
(xiixi) such other assurances, certificatescertificates or documents as the Administrative Agent, documentsany L/C Issuer, consents the Swing Line Lender or opinions as Agent or the Required Lenders any Lender reasonably may require.
(bi) Without duplication of amounts described in clause (c) below, any All fees 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 Borrower shall have paid all reasonable fees, charges and disbursements of counsel (including local counsel) to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and Agentthe Administrative Agent or such counsel).
(d) The conditions precedent set forth in Section 4.02 shall have been satisfied. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the Fronting L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower (unless otherwise specified), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of Agreement, sufficient m number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) the Guaranty executed by the Guarantor;
(iv) such customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and the Guarantor 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 Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is and the Guarantor are duly organized or formed, and that the Borrower is and the Guarantor 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 their 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;
(vi) a favorable opinion opinions of in-house counsel and Xxxxxxxx & Xxxxxxxx LLP, each counsel to the Loan Parties acceptable Borrower, with respect to Agent the Borrower and the Guarantor, and Xxx Xxxxxx LLP, Connecticut counsel to the Guarantor, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals certificate shall be in full force true and effect, or (Bcorrect) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a4.02
(a) and 4.02
(b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could would 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 Loan Documents current Debt Ratings; and (D) that the Borrower has Closing Date Liquidity of not less than $500,000,000;
(viii) evidence that the Existing Credit Agreement has been obtained or concurrently with the Closing Date is being terminated and is repaid in effectfull and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) a certificate signed evidence of the repayment of intercompany Debt owing by a Responsible Officer the Borrower to certain of Borrower attesting its Subsidiaries (which Debt is described on Schedule 4.01) in an aggregate amount that causes such intercompany Debt not to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Dateexceed $500,000,000;
(x) evidence that all insurance required the intercompany Debt owing by the Borrower or the Guarantor to be maintained pursuant ING Groep N.V. or any of its Subsidiaries (other than the Subsidiaries of the Borrower) (A) has been converted to common equity of the Borrower or the Guarantor or (B) to the Loan Documents extent such Debt remains outstanding, has been obtained amended or modified to have a stated maturity date occurring after the first anniversary of the Commitment Termination Date and is in effectotherwise has terms and conditions substantially similar to the terms and conditions of such Debt prior to the amendment or modification thereof that extends the stated maturity date thereof;
(xi) evidence that all Indebtedness Debt Ratings are not less than BBB- from S&P and all Liens not less than Baa3 from Xxxxx’x (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have beenif such rating is BBB- from S&P or Baa3 from Xxxxx’x, or concurrently with the Closing Date will be, paid in full, discharged, and released; andthat neither is on negative watch);
(xii) the Audited Financial Statements;
(xiii) such other customary assurances, certificates, documentsdocuments or consents as the Administrative Agent, consents or opinions as Agent the Fronting L/C Issuer, the Several L/C Agent, the Swing Line Lender or the Required Lenders may reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date pursuant to the Loan Documents shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced two (2) Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 30, 2012. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing 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:
(ia) executed counterparts of this Agreement signed on behalf of and each party to this AgreementGuaranty;
(iib) a Note executed by each relevant Borrower in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(c) each Collateral Document set forth on Schedule 1.01B, duly executed by each Loan Party thereto, together with:
(i) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(ii) to the extent required under the Collateral and Guarantee Requirement, opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent; and
(iii) evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(d) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a partyparty or is to be a party on the Closing Date;
(ive) a certificate of Borroweropinion from Xxxxxxx Xxxxxxxx & Xxxxxxxx LLP, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formed, and that 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 New York counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to substantially in the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agentof Exhibit L;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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;
(viiif) a certificate signed by a Responsible Officer of Borrower the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no change, effect, event or circumstance occurrence since the date of the Audited Financial Statements December 31, 2004, that has had or could reasonably be reasonably expected to have, either individually or result in the aggregate, a Material Adverse Effect; Change;
(g) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the Chief Financial Officer of the Company;
(h) a certified copy of the Sponsor Management Agreement, including a certification by a Responsible Officer of the Company that such agreement is in full force and effect as of the Closing Date;
(Ci) evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and that the Administrative Agent has been named as loss payee under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ixj) a certificate signed certified copies of the Merger Agreement, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of Borrower attesting to the Solvency Company that such documents are in full force and effect as of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xiik) such other assurancesa Committed Loan Notice or Letter of Credit Application, certificatesas applicable, documents, consents or opinions as Agent or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) relating to the extent invoiced, prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent)initial Credit Extension.
Appears in 1 contract
Samples: Second Refinancing and Incremental Amendment (Sungard Capital Corp Ii)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender Bank to make its initial Credit Extension credit extension hereunder is subject to satisfaction of the following conditions precedent:
(a) 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 the signing Loan Party, each dated the Closing Date date hereof (or, in the case of certificates of governmental officials, a recent date before the Closing Datedate hereof) and each in form and substance satisfactory to Agent Bank and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf of each party Credit Agreement, sufficient in number for distribution to this AgreementBank and Borrower;
(ii) a the Note executed by Borrower in favor of each Lender requesting a NoteBorrower;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Agent Bank 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 Credit Agreement and the other Loan Documents to which Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as Agent Bank may reasonably require to evidence that Borrower is duly organized or formed, and that 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 ;
(v) a Material Adverse Effectduly completed initial Reconciliation Report;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xivii) evidence that all Indebtedness an executed Amended and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and releasedRestated Creditors’ Subordination Agreement executed by Zunicom; and
(xiiviii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders Bank reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date closing date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all reasonable costs and expenses of Bank (including attorneys’ fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Closing Dateclosing date, plus such additional amounts of such fees, charges costs and disbursements expenses as shall constitute its reasonable estimate of such fees, charges costs and disbursements expenses incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and AgentBank).
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Universal Power 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, except as otherwise agreed between the Borrower and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies PDF copies or other facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf of and each party to this AgreementGuaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) subject to Section 6.13(c), the elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and each Collateral Document set forth on Schedule 1.01B required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party or a Guarantor, as applicable thereto, together with evidence that all other actions, searches, recordings and filings required by the Collateral Documents that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) (A) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) party or is to be a certificate of Borrower, dated party on the Closing Date Date, and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear a good standing certificate from the signatures applicable Governmental Authority of each officer authorized to sign the Loan Documents, Party’s and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the each Guarantor’s jurisdiction of incorporation, organization of Borrower and or formation, each dated a true and correct copy of its by-lawsrecent date prior to the Closing Date;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formed(A) an opinion from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, and that 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 New York counsel to the extent that failure Loan Parties substantially in the form of Exhibit G and (B) an opinion of local counsel to do so could not the Loan Parties reasonably be expected acceptable to have a Material Adverse Effectthe Administrative Agent with regard to such matters of law as the Administrative Agent shall reasonably request;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to any Borrowingthe Transactions, or from the issuance Treasurer of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and releasedHoldings; and
(xiivii) such other assurances, certificates, documents, consents or opinions as copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent or with respect to the Required Lenders reasonably may require.Loan Parties;
(b) Without duplication of amounts described in clause (c) below, any The Closing Fee and all fees and expenses due to the Lead Arrangers and their Affiliates required to be paid on or the Closing Date and (in the case of expenses) invoiced at least three (3) Business Days before the Closing Date (except as otherwise reasonably agreed by the Borrower) shall have been paidpaid from the proceeds of the initial funding under the Facilities, including fees pursuant to the Engagement Letter.
(c) Unless waived by Agent, Borrower The Administrative Agent shall have paid received (i) unaudited consolidated balance sheets and related statements of income and cash flows of Holdings and its Subsidiaries and, if different of Holdings and its Restricted Subsidiaries for the fiscal quarter ending Xxxxx 00, 0000, (xx) quarterly projected consolidated balance sheets of Holdings and its Subsidiaries as of each fiscal quarter end through the end of the fiscal year 2014, and the related consolidated statements of projected cash flow and projected income and a summary of the material underlying assumptions applicable thereto, and (iii) annual projected consolidated balance sheets of Holdings and its Subsidiaries as of each fiscal year end for each fiscal year after 2014 and through June 2018, and the related consolidated statements of projected cash flow and projected income and a summary of the material underlying assumptions applicable thereto.
(d) The Administrative Agent shall have received all reasonable feesdocumentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, charges and disbursements including the USA PATRIOT Act that has been requested reasonably in advance of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, prior to or on the Closing Date.
(e) The Administrative Agent shall have received reasonably satisfactory evidence that the Refinancing has been consummated or, plus such additional amounts substantially concurrently with the initial borrowing under the Facilities, shall be consummated. Without limiting the generality of such feesthe provisions of Section 9.03(b), charges and disbursements as for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall constitute its reasonable estimate of such feesbe deemed to have consented to, charges and disbursements incurred approved or accepted or to be incurred satisfied with, each document or other matter required thereunder to be consented to or approved by it through or acceptable or satisfactory to a Lender unless the closing proceedings (provided that Administrative Agent shall have received notice from such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent)Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, 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 Lenders:
(i) executed counterparts of this Agreement signed on behalf of sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of 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 Borrower is a partyDocuments;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower 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 Effectit is organized;
(viv) a favorable opinion written opinion(s) of counsel to the Loan Parties acceptable to Agent Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 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) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effectcurrent Ratings;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(xvii) evidence that all insurance required to be maintained pursuant to the Loan Documents has Existing Credit Agreements and the DP&L Fifth Third Credit Facility have been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, are being terminated and the obligations thereunder have been paid in full, discharged, full and any Liens securing obligations under the Existing Credit Agreements and the DP&L Fifth Third Credit Facility have been or concurrently with the Closing Date are being released; and
(xiiviii) such other assurances, certificates, documents, consents or opinions as Agent or evidence that the Required Lenders reasonably may requireconditions precedent to the effectiveness of the US Bank Credit Facility have been satisfied and all documentation thereof and required thereunder has been executed.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paidpaid to the extent invoiced at least two (2) Business Days prior to the Closing Date.
(c) Receipt by the Lenders of all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations requested by such Lender at least ten (10) days prior to the Closing Date.
(d) Unless waived by Agentthe Arrangers, and subject to the provisions of the Fee Letter and the Commitment Letter, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel due to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced at least two (2) Business Days prior to or on the Closing DateDate and required to be paid pursuant to the Fee Letters or the Commitment Letters. Without limiting the generality of the provisions of the last paragraph of Section 9.03, plus such additional amounts for purposes of such feesdetermining compliance with the conditions specified in this Section 4.01, charges and disbursements as each Lender that has signed this Agreement shall constitute its reasonable estimate of such feesbe deemed to have consented to, charges and disbursements incurred approved or accepted or to be incurred satisfied with, each document or other matter required thereunder to be consented to or approved by it through or acceptable or satisfactory to a Lender unless the closing proceedings (provided that Administrative Agent shall have received notice from such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent)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 on the Restatement Date hereunder is subject to satisfaction or waiver (in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note, provided that the Borrower receives a request for any such Note at least two Business Days prior to the Restatement Date;
(iii) a master reaffirmation agreement (the “Reaffirmation Agreement”), duly executed by each Loan Party, pursuant to which, among other things, each Loan Party reaffirms its obligations under the Guaranty and Collateral Documents, together with (to the extent not previously delivered to the Administrative Agent):
(A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement;
(C) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect the Liens created thereby; and
(D) evidence that all other action that the Administrative Agent may deem reasonably necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters and UCC-3 termination statements).
(iv) an amendment to the Mortgage covering the property listed on Schedule 1.01(a);
(v) to the extent not previously delivered to the Administrative Agent, an Intellectual Property Security Agreement, duly executed by each Loan Party owning any Intellectual Property Collateral (as defined in the Security Agreement), together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary or desirable in order to perfect the Liens created under such Intellectual Property Security Agreement has been taken;
(vi) an amendment to the ABL Credit Agreement, duly executed by the Borrower, the other borrowers party thereto, the requisite lenders party thereto, and the ABL Agent, pursuant to which, among other things, the Transactions are permitted;
(vii) an amendment to, and reaffirmation of, the Intercreditor Agreement, duly executed by the Borrower, the other Loan Parties party thereto, the Administrative Agent and the ABL Agent;
(viii) the charter document of each Loan Party, certified as of a recent date prior to the Restatement Date by the Secretary of State (or comparable official) of such Loan Party’s jurisdiction of incorporation;
(ix) a certificate of the Secretary or an Assistant Secretary or Responsible Officer of each Loan Party, dated the Restatement Date, certifying (A) that attached thereto are true and correct copies of the Organization Documents of such Loan Party; and (B) that there are no proceedings for the dissolution or liquidation of such Loan Party;
(x) such customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party or is to be a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(vxi) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that Borrower 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;
(vixii) a favorable opinion of Xxxxxxxxx Xxxxxxx, LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, and covering such matters concerning the Loan Parties, the Loan Documents and the Transactions as the Required Lenders may reasonably request;
(xiii) a favorable opinion of Xxxxxxxxx Traurig, LLP, local counsel to the Loan Parties acceptable in Delaware, a favorable opinion of Xxxxxxxxx Xxxxxxx, LLP, local counsel to Agent the Loan Parties in Virginia, a favorable opinion of Xxxxxxxx X. Xxxxxx, an in-house counsel of the Borrower, with respect to certain matters under the Indiana law, each addressed to the Administrative Agent and each Lender, as to and covering such other matters concerning the matters set forth concerning Borrower and Loan Parties, the Loan Documents in form and substance the Transactions as the Required Lenders may reasonably satisfactory to Agentrequest;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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;
(viiixiv) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; , and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effectcurrent Debt Ratings;
(ixxv) a certificate signed business plan and budget of the Borrower and its Subsidiaries on a consolidated basis, including forecasts prepared by management of the Borrower, of consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on a Responsible Officer of Borrower quarterly basis for the first year following the Restatement Date;
(xvi) certificates attesting to the Solvency of the Borrower both and its Material Subsidiaries, taken as a whole, before and after giving effect to any Borrowingthe Transaction, or from the issuance chief financial officer of any Letters of Credit, in each case, on the Closing DateBorrower;
(xxvii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently together with the Closing Date will certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid under all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) insurance policies maintained with respect to the extent invoiced, prior to or on assets and properties of the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided Loan Parties that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).constitutes Collateral;
Appears in 1 contract
Samples: Term B Loan Credit Agreement (Remy International, Inc.)
Conditions of Initial Credit Extension. (a) 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:
(ai) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (and, in the case of this Agreement, by each Lender), each dated the 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 Agent and each of the Lenders:):
(iii) executed counterparts of this Agreement signed on behalf of each party to this Agreementand the Guaranty;
(iiiii) a Note executed by the Borrower in favor of each Lender requesting a Note, with such requests provided to the Company at least two Business Days prior to the Closing Date;
(iiiiv) the Security Agreement, together with:
(A) certificates representing the Pledged Securities (if any) referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Intercompany Notes indorsed in blank,
(B) proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that are necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) certified copies of UCC, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Loan Party or Qualified Subsidiary as debtor and that are filed in those state and county jurisdictions in which any Loan Party or Qualified Subsidiary is organized or maintains its principal place of business, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Liens permitted by Section 7.01 or any other Liens acceptable to the Administrative Agent), and
(D) a fully executed Perfection Certificate substantially in the form of Exhibit I
(v) a Solvency Certificate in the form of Exhibit K shall have been executed and delivered by the chief financial officer of the Borrower;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party or is to be a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(vvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that each of the Borrower and its Subsidiaries 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 Effectorganization;
(viviii) a favorable opinion of Simpson, Thacher & Xxxxxxxx LLP counsel to the Loan Parties, addressed to the Administrative Agent and each Lender;
(ix) a favorable opinion of XxXxxxxxx Will & Xxxxx LLP, local counsel to the Loan Parties acceptable to Agent in Texas, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(viix) the financial statements referenced in Section 5.05(a) and (d);
(xi) the Intercreditor Agreement, fully executed by the trustee for the Senior Secured Notes, the Administrative Agent, and acknowledged by the Loan Parties; and
(xii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with as to the execution, delivery and performance by Borrower and the validity against Borrower satisfaction of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified set forth in Sections 4.02(a4.01(e), (f), (g) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may requirej).
(bi) Without duplication of amounts described in clause (c) below, any All fees required to be paid to the Administrative Agent and the Lead Arrangers on or before the Closing Date shall have been paid to the extent then invoiced, with such invoices provided to the Company at least two Business Days prior to the Closing Date 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 Borrower shall have paid all applicable expenses (including the reasonable fees, charges and invoiced fees and disbursements of counsel (with such invoices provided to the Company at least two Business Days prior to the Closing Date)) that are due pursuant to Section 11.04(a).
(d) The Merger shall have been, or shall simultaneously be, consummated pursuant to the Purchase Agreement, and the purchase price thereof shall not be changed without the Lead Arrangers’ prior consent and no other provision thereof shall have been amended or waived or consented to in any manner which is materially adverse to the Lenders without the prior written consent of the Lead Arrangers.
(e) Since December 31, 2009, there shall have been no change, development or event that, individually or in the aggregate, has had or would reasonably be expected to have a Closing Date Material Adverse Change.
(f) The Consolidated Leverage Ratio as of the last day of the most recent fiscal quarter of the Borrower ended not less than 45 days prior to the Closing Date shall not be greater than 5.1:1.0 after giving effect to the consummation of the Transaction.
(g) Immediately after giving effect to the Transaction, neither Holdings nor any of its Subsidiaries has any Indebtedness for borrowed money or preferred stock other than (i) the Senior Secured Notes, (ii) up to $12,000,000 aggregate principal amount of Indebtedness of Qualified Subsidiaries and (iii) Indebtedness in respect of the Revolving Credit Loans not in excess of $5,000,000.
(h) The Borrower shall have received $250,000,000 in gross proceeds from the sale of the Senior Secured Notes; Holdings shall have received cash proceeds equal to at least 40% of the total pro forma consolidated debt (based on the principal amount thereof in the case of debt issued at a discount to its initial principal amount) and equity capitalization of the Borrower and its Subsidiaries on the Closing Date after giving effect to the Transaction from a capital contribution to its equity and Holdings shall have contributed such cash proceeds to the capital of the Borrower.
(i) The Lenders and the Administrative Agent shall have received the information required under Section 11.18 not less than five (directly 5) Business Days prior to such counsel if requested the Closing Date.
(j) (i) The representations made by Agent) Borrower in the Purchase Agreement as are material to the interests of the Lenders, but only to the extent invoicedthat Holdings or MergerCo has the right to terminate its obligations under the Purchase Agreement as a result of a breach of such representations in the Purchase Agreement shall be true and correct and (ii) the representations contained in Sections 5.01, prior 5.02, 5.03, 5.04, 5.13, 5.15(a) (with respect to or the Act) 5.17, 5.19 and 5.21 (with the representations under Section 5.01(b)(ii), 5.02, 5.03 and 5.04 limited to representations in such sections with respect to the Loan Documents) shall be true and correct in all material respects on and as of the Closing Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date.
(i) The Administrative Agent shall have received a customary “pay-off” letter and UCC-3 termination statements with respect to all Liens to be terminated upon the Closing Date, plus and such additional amounts other customary releases with respect to Liens to be terminated at the Closing Date as the Administrative Agent may reasonably request. Without limiting the generality of such feesthe provisions of the last paragraph of Section 9.03, charges and disbursements as for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall constitute its reasonable estimate of such feesbe deemed to have consented to, charges and disbursements incurred approved or accepted or to be incurred satisfied with, each document or other matter required thereunder to be consented to or approved by it through or acceptable or satisfactory to a Lender unless the closing proceedings (provided that Administrative Agent shall have received notice from such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent)Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) : The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) : executed counterparts of this Agreement signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each party to this Agreement;
(ii) Lender and the Borrower; a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) ; such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of 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 the Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) ; such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formedorganized, and that the Borrower is validly existing, in good standing and qualified to engage in business in Delaware 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 not reasonably be expected to have a Material Adverse Effect;
(vi) a ; favorable opinion opinions of the Borrower's general counsel and of Pillsbury Winthrop LLP, counsel to the Loan Parties acceptable to Agent Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F and such other matters concerning the Borrower and the Loan Documents in form and substance as the Required Lenders may reasonably satisfactory to Agent;
(vii) request; a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by the Borrower and the validity against 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;
(viii) ; a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; , and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effectcurrent Debt Ratings;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).
Appears in 1 contract
Samples: Credit Agreement (McClatchy Co)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) the Pledge Agreement (together with each other pledge and security agreement and pledge and security agreement supplement delivered pursuant to Section 6.13, in each case as amended or modified), duly executed by each Person required to execute same pursuant to the terms hereof, together with:
(A) all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Pledge Agreement, together with duly executed in blank, undated stock powers attached thereto;
(B) 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 Pledge Agreement, covering the Collateral described in the Pledge Agreement,
(C) updated searches of Uniform Commercial Code filings in the jurisdiction of organization of each Loan Party and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens,
(D) duly executed notices of grant of security interest in the form required by the Pledge Agreement as are necessary, as determined by Administrative Agent, to perfect the Administrative Agent’s security interest in the Collateral, duly executed consents as are necessary, as determined by Administrative Agent, to perfect the Administrative Agent’s security interest in the Collateral and evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby,
(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements);
(iv) a Mortgage with respect to each Borrowing Base Property, if any, duly executed by the appropriate Loan Party, together, in each case, with the BBP Deliverables related thereto;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(ivvi) copies of the Organization Documents of each Loan Party certified to be true and complete as of a certificate recent date by the appropriate Governmental Authority of Borrowerthe state or other jurisdiction of its incorporation or organization, dated where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such other documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that Borrower each of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vivii) a favorable opinion of (A) Hunton & Xxxxxxxx, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in the form attached as Exhibit G-1, and (B) Administrative Agent-approved local counsel to the Loan Parties acceptable to Agent in each state in which any Borrowing Base Property (if any) is located, addressed to the Administrative Agent and each Lender, as to the matters set forth in the form of opinion attached as in Exhibit G-2 (with such modifications, assumptions, exceptions and qualifications as are reasonably acceptable to the Administrative Agent) and such other matters concerning Borrower the Loan Parties and the Loan Documents in form and substance reasonably satisfactory to Agentas the Required Lenders may request;
(viiviii) a certificate of a Responsible Officer of Borrower each Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiiix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a), (b) and (bc) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on March 31, 2010, signed by a Responsible Officer of the Borrower;
(xi) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xixii) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with a certificate executed by a Responsible Officer of the Borrower as of the Closing Date will beDate, paid in fullform and substance satisfactory to the Administrative Agent, dischargedregarding the Solvency of (a) the Borrower, (b) each of the other Loan Parties, and released; and(c) the Consolidated Parties on a consolidated basis;
(xiixiii) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Without duplication The Administrative Agent shall have received executed counterparts of amounts described in clause (c) belowthe Fee Letter, and any fees required to be paid hereunder or under the Fee Letter on or before the Closing Date shall have been paidpaid (provided such fees may be paid from the proceeds of such initial Credit Extension).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Closing Date.
(e) No Default shall exist, or would result from, such proposed Credit Extension or from the application of the proceeds thereof.
(f) There shall not have occurred any event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(g) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder on or after the Fifth Restatement Effective Date is subject to satisfaction of the following conditions precedentprecedent except as otherwise agreed between the Borrowers and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or a Guarantor, each dated the Closing Date (oras applicable, 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:its legal counsel (subject to Section 6.13(c)):
(i) executed counterparts of this Agreement signed on behalf of Agreement, the Security Agreements, and each party to this AgreementGuaranty;
(ii) a Note Notes executed by Borrower the Borrowers in favor of each Lender requesting a Notethat has requested Notes at least two Business Days in advance of the Fifth Restatement Effective Date;
(iii) the elements of the Collateral and Guarantee Requirement required to be satisfied on the Fifth Restatement Effective Date shall have been satisfied and each Collateral Document set forth on Schedule 1.01B required to be executed on the Fifth Restatement Effective Date as indicated on such schedule, duly executed by each Loan Party or a Guarantor (including the Core-Mark Acquired Companies), as applicable, thereto, together with evidence that all other actions, searches, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; provided that to the extent any lien search, Collateral or insurance referred to in this clause (iii) (other than pledge and perfection of security interests in Equity Interests of Domestic Subsidiaries and Canadian Subsidiaries of the Borrowers and the Guarantors (to the extent required hereunder) and other assets with respect to which a Lien may be perfected by the filing of a financing agreement under the Uniform Commercial Code or PPSA) is not provided on the Fifth Restatement Effective Date after the Borrowers’ use of commercially reasonable efforts to do so, the delivery of such lien search, Collateral or insurance referred to in clause (iii) above shall not constitute a condition precedent to the availability of the Revolving Loans on the Fifth Restatement Effective Date but shall be required to be delivered after the Fifth Restatement Effective Date pursuant to Section 6.13(c) (it being understood that, due to the eligibility requirements set forth in the definitions of “Eligible Accounts”, “Eligible Inventory”, “Eligible In-Transit Inventory”, “Eligible Real Property” and “Eligible Rolling Stock”, Excess Availability may be adversely affected if the above mentioned conditions are not satisfied);
(A) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party and each Guarantor (including the Core-Mark Acquired Companies) 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 Borrower such Loan Party or such Guarantor is a partyparty or is to be a party on the Fifth Restatement Effective Date, and (B) a good standing certificate from the applicable Governmental Authority of each Loan Party’s and each Guarantor’s jurisdiction of incorporation, organization or formation, each dated a recent date prior to the Fifth Restatement Effective Date;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as an opinion from Xxxxxx Xxxxxxx Xxxxx LLP, New York counsel to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan DocumentsParties, and (B) identify by name and title and bear the signatures opinions of each officer authorized local counsel to sign the Loan DocumentsParties, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formed, and that Borrower is validly existingwhich opinions, in good standing and qualified to engage in business in each jurisdiction where its ownershipcase, lease or operation of properties or the conduct of its business requires such qualification, except shall be reasonably acceptable to the extent that failure Administrative Agent with regard to do so could not such matters of law as the Administrative Agent shall reasonably be expected to have a Material Adverse Effectrequest;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedsince July 3, (B) that 2021, 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 Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf of and each party to this AgreementGuaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) each Collateral Document set forth on Schedule 1.01B, duly executed by each Loan Party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) to the extent required under the Collateral and Guarantee Requirement, opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent, and
(C) evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) party or is to be a certificate of Borrower, dated party on the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-lawsDate;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formedopinion from Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, and that 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 New York counsel to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectLoan Parties substantially in the form of Exhibit I;
(vi) a favorable opinion of opinions from special FCC counsel and local counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lenderin form, as to the matters set forth concerning Borrower and the Loan Documents in form scope and substance reasonably satisfactory to the Administrative Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 Borrower the Borrower, certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no change, effect, event or circumstance occurrence since the date of the Audited Financial Statements December 31, 2005, that has had or could reasonably be reasonably expected to have, either individually or result in the aggregate, a Material Adverse Effect; and Change;
(Cviii) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) on the Closing Date after giving effect to the Transaction, from the Chief Financial Officer of the Borrower;
(ix) evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and that the Administrative Agent has been named as loss payee under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ixx) a certificate signed certified copies of the Merger Agreement, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower attesting to the Solvency that such documents are in full force and effect as of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;; and
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have beena Committed Loan Notice or Letter of Credit Application, or concurrently with as applicable, relating to the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may requireinitial Credit Extension.
(b) Without duplication of amounts described in clause (c) below, any All fees and expenses required to be paid on or hereunder and invoiced before the Closing Date shall have been paidpaid in full in cash.
(c) Unless waived by AgentPrior to the initial Credit Extension, (i) the Cumulus Equity Contribution shall have occurred, and (ii) the KC Acquisition shall have been consummated in all material respects in accordance with the terms of the KC Acquisition Agreement and in compliance with applicable material Laws and regulatory approvals.
(d) Prior to or simultaneously with the initial Credit Extension, (i) the Equity Contributions shall have been funded in full in cash, (ii) the Borrower shall have paid received (whether directly as a result of the Equity Contribution or as a result of an equity contribution by Holdings) cash proceeds from the Equity Contribution in an aggregate amount equal to at least $250,000,000, and (iii) the Merger shall be consummated in all reasonable feesmaterial respects in accordance with the terms of the Merger Agreement and in compliance with applicable material Laws and regulatory approvals.
(e) Prior to or simultaneously with the initial Credit Extensions, charges the Borrower shall have received at least $250,000,000 in gross cash proceeds from the issuance of the Senior Subordinated Notes.
(f) Prior to or simultaneously with the initial Credit Extensions, the Borrower shall have terminated the Existing Credit Agreement and disbursements taken all other necessary actions (including causing KC Corp. to be released from its guaranty of counsel the obligations of StickCo under the StickCo Credit Documents) such that, after giving effect to Agent the Transaction, (directly i) Holdings and its Subsidiaries shall have outstanding no Indebtedness or preferred Equity Interests other than (A) the Loans and L/C Obligations, (B) the Senior Subordinated Notes and (C) Indebtedness listed on Schedule 7.03(b) and (ii) the Borrower shall have outstanding no Equity Interests (or securities convertible into or exchangeable for Equity Interests or rights or options to such counsel if requested acquire Equity Interests) other than common stock owned by Agent) Holdings and preferred stock owned by Holdings, with terms and conditions reasonably acceptable to the Arrangers to the extent invoicedmaterial to the interests of the Lenders.
(g) The Arrangers and the Lenders shall have received (i) the Audited Financial Statements and the audit report for such financial statements (which shall not be subject to any qualification) and (ii) unaudited consolidated balance sheets and related statements of income, prior to or on stockholders’ equity and cash flows of Target and its Subsidiaries for (A) each subsequent fiscal quarter ended after December 31, 2005 and at least forty-five (45) days before the Closing Date, plus such additional amounts reviewed in accordance with SAS 100 by an independent accounting firm and (B) the extent reasonably available and, in any event, excluding footnotes, each fiscal month after the most recent fiscal period for which financial statements were received by the Arrangers and the Lenders as described above and ended at least fifteen (15) days before the Closing Date (collectively, the “Unaudited Financial Statements”), which financial statements shall be prepared in accordance with GAAP.
(h) The Arrangers and the Lenders shall have received the Pro Forma Financial Statements.
(i) On or prior to the date of such feesthe initial Credit Extensions, charges each Loan Party and disbursements as each other Subsidiary of Holdings which is an obligee or obligor with respect to any intercompany Indebtedness shall constitute its reasonable estimate of such feeshave duly authorized, charges executed and disbursements incurred or to delivered the Intercompany Note, and the Intercompany Note shall be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower in full force and Agent)effect.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of Agreement, the Guaranty, and the Pledge Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that each 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 an opinion of Xxxxx Xxxxx L.L.P., counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, as to Lender covering such matters concerning the matters set forth concerning Borrower Loan Parties and the Loan Documents as the Lenders may reasonably request and in form and substance reasonably satisfactory to Agentthe Lenders;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Borrower certifying (A) that the conditions specified in Sections 4.01(b), (c) and (d) and 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ixvii) a certificate duly completed Compliance Certificate as of the last day of the most recently ended fiscal quarter (or fiscal year) of the Borrower for which financial statements are available, signed by a Responsible Officer of the Borrower attesting to and demonstrating pro forma compliance with the Solvency of Borrower both before and financial covenants set forth in Section 7.13 (after giving effect to any Borrowing, or the issuance Combination and the incurrence of any Letters of Credit, in each case, Indebtedness on the Closing Date);
(xviii) a certificate as to the solvency of the Borrower individually and the Loan Parties taken as a whole (after giving effect to the Combination and the incurrence of Indebtedness on the Closing Date) from the chief financial officer of EnLink Manager;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents Existing Credit Agreement has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(x) a Form U-1 duly executed and completed by the Borrower; and
(xiixi) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Without duplication The Administrative Agent shall have received evidence satisfactory to it that on or before the date of amounts described the initial Credit Extension hereunder, the transactions contemplated by the Merger Agreement (as amended, restated, supplemented or otherwise modified in clause a manner not materially adverse to the Lenders unless the consent of each Lender has been obtained), shall have been consummated, without the waiver or modification of any condition precedent thereto or to the Merger Agreement (as defined therein) that is materially adverse to the Lenders unless the consent of each Lender is obtained.
(c) belowThere shall not have occurred since December 31, 2012 any event or condition that has had a Material Adverse Effect.
(d) There shall not have occurred a Midstream Xxxxx Xxxxxxxx Adverse Effect or a Crosstex Material Adverse Effect (each as defined in the Merger Agreement).
(e) All filings, recordations and searches necessary or reasonably requested by the Administrative Agent in connection with the Liens and security interests on the Collateral shall have been duly made (or, in the case of filings and recordations, provision acceptable to the Administrative Agent shall have been made therefor).
(f) The Lenders shall have received satisfactory evidence that the Administrative Agent (on behalf of the Secured Parties) shall have a valid and perfected first priority (subject to Permitted Collateral Liens) Lien and security interest in the Equity Interests in EnLink MLP and EnLink Holdings constituting Collateral and a valid and perfected first priority (subject to Permitted Liens) Lien and security interest in the Collateral other than Equity Interests in EnLink MLP and EnLink Holdings.
(g) The Borrower and its Subsidiaries shall have provided the documentation and other information to the Lenders that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act.
(h) The Lenders shall have received the Audited Financial Statements, the Unaudited Financial Statements, the Pro Forma Financial Statements and the Forecast Financial Statements.
(i) Any fees required to be paid on or before the Closing Date shall have been paid.
(cj) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced at least one Business Day prior to or on the Closing Date.
(k) The Administrative Agent shall have received a funds flow memorandum in form and substance reasonably satisfactory to it. Without limiting the generality of the provisions of the last paragraph of Section 9.03, plus such additional amounts for purposes of such feesdetermining compliance with the conditions specified in this Section 4.01, charges and disbursements as each Lender that has signed this Agreement shall constitute its reasonable estimate of such feesbe deemed to have consented to, charges and disbursements incurred approved or accepted or to be incurred satisfied with, each document or other matter required thereunder to be consented to or approved by it through or acceptable or satisfactory to a Lender unless the closing proceedings (provided that Administrative Agent shall have received notice from such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent)Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) executed counterparts of the Guaranty, executed by each Domestic Subsidiary;
(iv) executed counterparts of the Borrower Security Agreement and Subsidiary Security Agreement, together with:
(A) proper financing statements (Form UCC-1 or the equivalent) or other Perfection Documents fully executed (as appropriate) for filing under the Uniform Commercial Code or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable, to perfect the security interests purported to be created by the Borrower Security Agreement and the Subsidiary Security Agreement, as applicable, in each case to the extent such perfection is required thereby (including control agreements in respect of deposit accounts);
(B) copies of requests for information or copies, or equivalent reports as of a recent date, listing all effective financing statements that name the Borrower or any of its Subsidiaries as debtor and that are filed in the jurisdictions referred to in clause (A) above and in such other jurisdictions in which the Collateral is located on the date of the initial Credit Extension or as otherwise deemed appropriate by the Administrative Agent, together with copies of such other financing statements that name the Borrower or any of its Subsidiaries as debtor (none of which shall cover the Collateral except (x) to the extent evidencing Permitted Liens or (y) those in respect of which the Administrative Agent shall have received termination statements (Form UCC-3) or such other termination statements as shall be required by local law fully authorized or executed for filing);
(C) evidence of the completion of all other recordings and filings of, or with respect to, the Borrower Security Agreement and the Subsidiary Security Agreement as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect and protect the security interests intended to be created by the Borrower Security Agreement and the Subsidiary Security Agreement, as applicable; and
(D) subject to the last sentence of Section 6.14, evidence that all other actions necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect and protect the security interests purported to be created by the Borrower Security Agreement and, if applicable, the Subsidiary Security Agreement (to the extent such perfection is required thereby) have been, or will be, substantially contemporaneously with the initial Credit Extension, taken, and the Borrower Security Agreement and the Subsidiary Security Agreement shall be in full force and effect;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(vvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that 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;
(vivii) a favorable opinion of counsel to the Loan Parties acceptable satisfactory to Agent the Administrative Agent, addressed to Agent and each Lenderthe Administrative Agent, as to the matters set forth in Exhibit E and such other matters concerning Borrower the Loan Parties and the Loan Documents in form and substance as the Administrative Agent may reasonably satisfactory to Agentrequest;
(viiviii) a certificate of a Responsible Officer of Borrower each Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiiix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to a duly completed Compliance Certificate as of the Loan Documents has been obtained and is in effectlast day of the fiscal quarter of the Borrower ended on June 30, 2007, signed by a Responsible Officer of the Borrower;
(xi) evidence that all Indebtedness consolidating balance sheets of the Borrower and all Liens (other than Indebtedness permitted under Section 7.02 its Subsidiaries as of June 30, 2007 and Liens permitted under Section 7.01) have beenthe related consolidating statements of income or operations, or concurrently shareholders’ equity and cash flows for the 12 month period ending on such date, in reasonable detail and prepared in accordance with the Closing Date will be, paid in full, discharged, and releasedGAAP; and;
(xii) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before September 30, 2007. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) fully executed counterparts of this Agreement signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and FSP;
(ii) a Note for the Revolving Loans and the Term Loan executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each 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;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, and that each 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 counsel to the Loan Parties acceptable to Agent Borrower (on behalf of each Borrower with the exception of FSP Forest Park IV NC Limited Partnership) addressed to the Administrative Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to AgentExhibit B;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 Borrower 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 (and including detailed calculations of each such financial covenant) for the fiscal quarter ending June 30, 2012 (which calculation 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; (E) that, (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 would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (CF) all insurance required to be maintained pursuant to a calculation of the Loan Documents has been obtained and is in effectLeverage Ratio as of the last day of the fiscal quarter ending June 30, 2012;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(xvii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xiiviii) such other assurances, certificates, documentsdocuments or consents as the Administrative Agent, consents or opinions as Agent the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Without duplication of amounts described There shall not have occurred since June 30, 2012 any event or condition that has had or would be reasonably expected, either individually or in clause the aggregate, to have a Material Adverse Effect, as determined by Administrative Agent.
(c) belowThere 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 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 FSP on or before the Closing Date shall have been paid.
(ce) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced to FSP prior to or on the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03, plus such additional amounts for purposes of such feesdetermining compliance with the conditions specified in this Section 4.01, charges and disbursements as each Lender that has signed this Agreement shall constitute its reasonable estimate of such feesbe deemed to have consented to, charges and disbursements incurred approved or accepted or to be incurred satisfied with, each document or other matter required thereunder to be consented to or approved by it through or acceptable or satisfactory to a Lender unless the closing proceedings (provided that Administrative Agent shall have received notice from such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent)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 precedentprecedent except as otherwise agreed between the Borrower and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or Guarantor, each dated the Closing Date (oras applicable, 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 signed on behalf of and each party to this AgreementGuaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party or Guarantor, as applicable, thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) to the extent required under the Collateral and Guarantee Requirement, opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent; and
(C) evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party and each Guarantor 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 Borrower such Loan Party or such Guarantor is a party;
(iv) party or is to be a certificate of Borrower, dated party on the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-lawsDate;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formedan opinion from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, and that 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 New York counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to substantially in the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agentof Exhibit H;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedsince June 30, (B) that 2006 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 Closing Date Material Adverse Effect; and ;
(Cvii) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) on the Closing Date after giving effect to the Transaction, from the Chief Financial Officer of the Borrower;
(viii) evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and that the Administrative Agent has been named as loss payee and additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ix) a certificate signed certified copies of the Purchase Agreement, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower attesting to the Solvency that such documents are in full force and effect as of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the Loan Documents has been obtained and is in effect;initial Credit Extension; and
(xi) evidence that all Indebtedness copies of a recent Lien and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may requireLoan Parties.
(b) Without duplication of amounts described in clause (c) below, any All fees and expenses required to be paid hereunder and invoiced on or before the Closing Date shall have been paidpaid in full in cash or will be paid on the Closing Date out of the initial Credit Extension.
(c) Unless waived by AgentPrior to or simultaneously with the initial Credit Extension, (i) the Equity Contribution shall have been funded in full in cash; (ii) the Borrower shall have paid all reasonable fees, charges and disbursements received (whether directly as a result of counsel the Equity Contribution or as a result of an equity contribution by Holdings) cash proceeds from the Equity Contribution in an aggregate amount equal to Agent (directly to such counsel if requested by Agent) to at least 25% of the extent invoiced, prior to or aggregate pro forma capitalization of Holdings on the Closing Date, plus such additional amounts ; and (iii) the Acquisition shall be consummated in accordance with the terms of such fees, charges and disbursements as shall constitute its the Purchase Agreement (without giving effect to any amendments or waivers thereto that are materially adverse to the Lenders without the reasonable estimate consent of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings Administrative Agent (provided that such estimate which consent shall not thereafter preclude a final settling be unreasonably withheld or delayed)) and in compliance with applicable material Laws and regulatory approvals.
(d) To the extent Equity Interests other than common Equity Interests was issued in connection with the Equity Contribution, such issuance shall be on terms and conditions, and pursuant to documentation, reasonably satisfactory to the Administrative Agent to the extent material to the interests of accounts between the Lenders.
(e) Prior to or substantially simultaneously with the initial Credit Extensions, the Borrower shall have taken all other necessary actions such that, after giving effect to the Transaction, (i) the Borrower and Agentits Restricted Subsidiaries shall have outstanding no Indebtedness or preferred Equity Interests other than (A) the Loans and L/C Obligations, (B) the High Yield Notes, and (C) Indebtedness listed on Schedule 7.03(b).
(f) The Administrative Agent shall have received (i) the Audited Financial Statements and the audit report for such financial statements (which shall not be subject to any qualification), (ii) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Transferred Companies and their Subsidiaries, or Cardinal and its Subsidiaries, as the case may be, for each subsequent fiscal quarter ended at least forty-five (45) days before the Closing Date (the “Unaudited Financial Statements”), which financial statements shall be prepared in accordance with GAAP, and (iii) the Pro Forma Financial Statements.
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 the satisfaction of the following conditions precedent:
(a) completion of all due diligence with respect to (i) the Borrower, (ii) the Guarantors, (iii) the Properties included in the Borrowing Base on the Closing Date, and (iv) each Company whose Equity Interests are pledged pursuant to the Collateral Assignment Agreement, in each case, in scope and determination satisfactory to the Arrangers and the Lenders in their sole discretion;
(b) The Administrative Agent’s '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 the signing Facility 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 signed on behalf Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower and executed counterparts of each party to this the Guaranty and the Advisor Fee Subordination Agreement;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a Note;
(iii) such Guaranty executed by each Guarantor;
(iv) Collateral Assignment Agreement executed by Borrower, CCIT II, each other Assignor and each Subsidiary Guarantor;
(v) the formation, organization and operating documents for each Facility Loan Party;
(vi) Responsible Officer Certificates for each Facility Loan Party, with respect to certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of 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 Borrower such Facility Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(vvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Facility Loan Party is duly organized or formed, and that Borrower each Facility 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;
(viviii) UCC searches disclosing that the Administrative Agent will have a first priority security interest in the Collateral granted pursuant to the Collateral Assignment Agreement;
(ix) a favorable opinion of Xxxxx Xxxx LLP (or another or additional law firm reasonably acceptable to the Administrative Agent), as counsel to the Facility Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning Borrower the Facility Loan Parties and the Loan Documents in form and substance under all applicable laws as the Administrative Agent or the Required Lenders may reasonably satisfactory to Agentrequest;
(viix) a certificate of if required by the Administrative Agent, a Responsible Officer of Borrower Certificate for each Facility Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower such Facility Loan Party and the validity against Borrower such Facility 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;
(viiixi) a certificate signed by a Responsible Officer of Certificate for the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been since September 30, 2014, 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 has occurred and (C) that, after giving effect to all insurance required requested Credit Extensions to be maintained pursuant to made on the Loan Documents has been obtained and is in effectClosing Date, the Total Outstandings shall not exceed the Borrowing Base, less all Unsecured Debt other than the Obligations;
(ixxii) a certificate duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on September 30, 2014, signed by a Responsible Officer of the Borrower attesting to on behalf of Borrower, and not in the Solvency individual capacity of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Dateindividual that is a Responsible Officer;
(xxiii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xixiv) evidence that all Indebtedness the Existing Credit Agreement and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) related documents have been, been or concurrently with the Closing Date will beare being terminated, paid all amounts owing thereunder have been repaid in fullfull and all Liens securing obligations under the Existing Credit Agreement, dischargedif any, have been or concurrently with the Closing Date are being released;
(xv) documentation and releasedother information reasonably requested by the Lenders in connection with applicable "know your customer" and anti-money-laundering rules and regulations, including the PATRIOT Act;
(xvi) with respect to each property that immediately prior to the Closing Date that is a Qualified Unencumbered Property as defined in and pursuant to the Existing Credit Agreement, a certificate of a responsible officer that certifies that such properties satisfy the criteria to be a Qualified Unencumbered Property as defined in and pursuant to this Agreement; and
(xiixvii) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date Date, including pursuant to the Fee Letter, shall have been paid.
(cd) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension the Loans hereunder is subject to satisfaction of the following conditions precedent:
(a) AgentThe Lender’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent the Lender and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf of each party Agreement, sufficient in number for distribution to this Agreementthe Lender and the Borrower;
(ii) executed counterparts of the Security Agreement by the Company, together with:
(A) proper financing statements (Form UCC-1 or the equivalent) for filing under the Uniform Commercial Code (“UCC”) in the office of the Secretary of State of California, covering the Collateral described in the Security Agreement;
(B) copies of requests for information or copies, or equivalent reports as of a Note executed recent date, listing all effective financing statements that name the Company as debtor and that are filed in the jurisdiction referred to in clause (A) above and shall be in form and substance satisfactory to the Lender; and
(C) evidence that all other actions necessary or, in the reasonable opinion of the Lender, desirable to perfect and protect the security interests purported to be created by Borrower the Collateral Documents have been, or will be, substantially contemporaneously with the Closing Date, taken, and the Collateral Documents shall be in favor of each Lender requesting a Notefull force and effect;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as Agent the Lender 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 Borrower is a partyDocuments;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as Agent the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that 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 Xxxxxxxx & Xxxxxxxx LLP, counsel to the Loan Parties acceptable to Agent addressed to Agent and each LenderCompany, as to addressing the matters set forth in Exhibit C and such other matters concerning the Borrower and the Loan Documents in form and substance as the Lender may reasonably satisfactory to Agentrequest;
(viivi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by the Borrower and the validity against 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 Borrower the Company certifying (A) that (1) all representations and warranties of the conditions specified Borrower contained in Sections 4.02(a) this Agreement and each of the other Loan Documents are true and correct on and as of such date and (b2) have been satisfiedno Default exists or would result from such proposed Borrowing, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and ;
(Cviii) all insurance required to be maintained pursuant to evidence that the Loan Documents Existing Credit Agreement has been obtained or concurrently with the Closing Date is being terminated and is in effectall Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) a certificate Borrowing Base Certificate signed by a Responsible Officer of Borrower attesting to the Solvency Company, certifying the Maintenance Borrowing Base as of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) satisfactory evidence that all insurance required to be maintained pursuant to of the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with acceptance by the Closing Date will be, paid in full, discharged, and releasedNY Process Agent of its appointment as agent for service of process by the Borrower; and
(xiixi) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders Lender reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) the Lender to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and Agentthe Lender).
(d) The Closing Date shall have occurred on or before June 22, 2009.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of and the Guaranty, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) each Security Document listed in the Security Schedule;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that Borrower the Borrower, 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 EffectChange and each jurisdiction in which such Loan Party owns property subject to the Security Documents;
(vi) a favorable opinion of (i) Jenkens & Gxxxxxxxx, a Professional Corporation, special Texas counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H and such other matters concerning Borrower the Loan Parties and the Loan Documents in form as the Required Lenders may reasonably request and substance reasonably (ii) local counsel for the states of Alabama, Florida, Louisiana and Mississippi satisfactory to Administrative Agent;
(vii) a A certificate of a Responsible Officer of Borrower each Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) The Initial Financial Statements;
(ix) Financial projections for Borrower and its Subsidiaries through May 2008, in form and substance reasonably satisfactory to Administrative Agent;
(x) Certificates or binders evidencing Loan Parties' insurance in effect on the date hereof naming Administrative Agent as loss payee and additional insured;
(xi) A certificate signed by the chief executive officer of General Partner in form and detail acceptable to Administrative Agent confirming the insurance that is in effect as of the date hereof and certifying that such insurance is customary for the businesses conducted by Loan Parties and is in compliance with the requirements of this Agreement;
(xii) Certificates from the chief financial officer of General Partner, in substantially the form of Exhibit J hereto, attesting to the Solvency of each Loan Party before and after giving effect to the transactions contemplated by this Agreement;
(xiii) A Risk Management Policy, satisfactory to Required Lenders shall have been adopted by Loan Parties (the "Risk Management Policy");
(xiv) The Borrowing Base (based on the Borrowing Base Report as of May 25, 2004) shall be at least $15,000,000 more than the initial Outstanding Working Capital Amount on the Closing Date after giving effect to the Working Capital Loans and Letters of Credit requested for such date, and General Partner shall have delivered to the Administrative Agent a Borrowing Base Report in reasonable detail demonstrating compliance with this requirement;
(xv) A certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and ), (b) have been satisfied), (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to havec), either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).
Appears in 1 contract
Samples: Credit Agreement (Genesis Energy Lp)
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf Agreement, the Collateral Documents and each of the other Loan Documents sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) 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 Pledge Agreement, covering the Collateral described in the Pledge Agreement;
(iv) certified copies of UCC, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name the Borrower as debtor and that are filed in those state and county jurisdictions in which the Borrower is organized or maintains its principal place of business and such other searches that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer of 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 Borrower is a partyDocuments;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(vvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower 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 Effectit is organized;
(vivii) certificates attesting to the Solvency of the Borrower from its chief financial officer, treasurer or assistant treasurer;
(viii) a favorable written opinion of New York counsel to the Loan Parties acceptable to Agent Borrower, addressed to the Administrative Agent, the Collateral Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(viiix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) the current Ratings and (C) the Certification Amount;
(x) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the consummation by the Borrower of the transaction and the execution, delivery and performance by the Borrower and the validity against 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;
(viiixi) a certificate signed by a Responsible Officer certificates of insurance, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lenders’ loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Borrower certifying that constitutes Collateral; and
(xii) evidence that (A) that the conditions specified in Sections 4.02(a) Existing DP&L PNC Credit Facility and (b) the obligations thereunder have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will beare being renewed, paid in full, discharged, extended and released; and
replaced pursuant to the New DP&L PNC Credit Facility and (xiiB) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may requireconditions precedent to the effectiveness of the New DP&L PNC Credit Facility have been satisfied and all documentation thereof and required thereunder has been executed.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paidpaid to the extent invoiced at least two Business Days prior to the Closing Date.
(c) Receipt by the Administrative Agent (on behalf of itself or any Lender) of all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations requested by the Administrative Agent at least ten (10) days prior to the Closing Date, including the USA Patriot Act .
(d) Unless waived by Agentthe Arrangers, and subject to the provisions of the Fee Letter and the Engagement Letter, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel due to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced at least two Business Days prior to or on the Closing DateDate and required to be paid pursuant to the Fee Letters or the Engagement Letters. Without limiting the generality of the provisions of the last paragraph of Section 9.03, plus such additional amounts for purposes of such feesdetermining compliance with the conditions specified in this Section 4.01, charges and disbursements as each Lender that has signed this Agreement shall constitute its reasonable estimate of such feesbe deemed to have consented to, charges and disbursements incurred approved or accepted or to be incurred satisfied with, each document or other matter required thereunder to be consented to or approved by it through or acceptable or satisfactory to a Lender unless the closing proceedings (provided that Administrative Agent shall have received notice from such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent)Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Agent’s receipt Receipt of the followingfollowing by the Administrative Agent, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly duly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the LendersAdministrative Agent:
(i) executed counterparts of this Agreement signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) the Security and Pledge Agreement, the Aircraft Security Agreement, the FAA Documents and the Deed of Trust;
(iii) Committed Loan Notes executed by the Borrower in favor of each Lender requesting such a Note, each in a principal amount equal to such Lender’s Commitment;
(iv) Swing Line Note executed by Borrower in favor of each the Swing Line Lender requesting (if it requests such a Note) in the principal sum of the Swing Line Sublimit;
(iiiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(vvi) such documents and certifications evidence as the Administrative Agent may reasonably require to evidence verify that Borrower each Loan Party is duly organized or formed, and that 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 qualificationin which it is required to be qualified to engage in business, except to the extent that where failure to do so qualify could not reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion , including certified copies of counsel each Loan Party’s Organization Documents, certificates of good standing and/or qualification to the Loan Parties acceptable to Agent addressed to Agent engage in business and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agenttax clearance certificates;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Borrower (i) 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 which has had or could be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; , (ii) demonstrating that immediately after the Credit Extensions contemplated to be made on the Closing Date, there will be Available Credit and (Ciii) all insurance required to demonstrating that, on a pro forma basis determined using actual results through April 30, 2010 and reasonable assumptions for financial results for May and June, 2010, the Borrower will be maintained pursuant to in compliance with the Loan Documents has been obtained financial covenants set forth in Section 7.13 as of its quarter ending June 30, 2010;
(viii) a Guaranty Agreement from each Domestic Subsidiary and is in effecteach Disregarded Foreign Subsidiary;
(ix) a certificate signed by a Responsible Officer of Borrower attesting subordination agreement from each Subnote Holder with respect to such Subnote Holder’s interest in the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing DateSubordinated Debt;
(x) evidence that all insurance required to be maintained pursuant to documentation of the Loan Documents has been obtained and is in effectcredit facility with Banca di Credito Cooperativo xx Xxxxxxxx;
(xi) evidence that Lenders have a first priority perfected security interest in all Indebtedness and all Collateral (subject only to Liens (other than Indebtedness expressly permitted under Section 7.02 and Liens permitted under to be prior pursuant to Section 7.01);
(xii) have been, or concurrently evidence that Borrower has assigned to Administrative Agent its right to payment under each contract listed on Schedule 5.17 pursuant to the Federal Assignment of Claims Act;
(xiii) each holder of Series A Redeemable Preferred Stock has delivered a consent and acknowledgement agreement with respect the Closing Date will be, paid provisions of Section 7.07 and agreement not to seek redemption of Series A Redeemable Preferred Stock in full, discharged, and releasedany form except conversion to Borrower’s common stock;
(xiv) payoff letters with respect to the Existing Indebtedness;
(xv) control agreement with respect to each of Borrower’s Deposit Accounts not maintained at Xxxxx Fargo;
(xvi) an opinion of counsel to each Loan Party; and
(xiixvii) such other assurances, certificates, documents, consents or opinions documents as Administrative Agent or the Required Lenders reasonably may require.
(b) Without duplication Standard lenders’ payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of amounts described the Borrower in clause accordance with Section 6.07 and the Collateral Documents.
(c) below, any Any fees required to be paid in accordance with the Fee Letter on or before the Closing Date shall have been paid.
(cd) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its Administrative Agent’s 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 following the Closing Date there shall not thereafter preclude be a final settling of accounts between the Borrower and Agentthe Administrative Agent with respect to such estimated Attorney Costs).
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) AgentThe Lender’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent the Lender and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf of Agreement, each party sufficient in number for distribution to this Agreementthe Lender and the Borrower;
(ii) if requested by the Lender, a Note executed by the Borrower in favor of each Lender requesting a Notethe Lender;
(iii) executed counterparts of a Pledge Agreement by (x) each Person holding Equity Interests in any Foreign Subsidiary Holding Company, and (y) the Borrower and each Domestic Subsidiary (other than a Foreign Subsidiary Holding Company) holding Equity Interests in any First Tier Foreign Subsidiary that is a Material Subsidiary and an Exempt Subsidiary, sufficient in number for distribution to the Lender and the Borrower, together with:
(A) written advice relating to such Lien searches as the Lender shall have requested, and such termination statements or other documents as may be necessary to confirm that the Pledged Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens); *** Confidential Treatment has been requested for portions of this Exhibit. Confidential portions of this Exhibit are designated by [****]. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(B) all certificates and instruments, if any, representing the Pledged Collateral, with stock transfer powers executed in blank with signatures guaranteed, as the Lender may specify;
(C) evidence that all other actions necessary or in the opinion of the Lender desirable to perfect and protect the first prior Lien created by the Pledge Agreement have been taken;
(D) funds sufficient to pay any filing tax or fee in connection with any and all UCC-1 financing statements deemed in the opinion of the Lender necessary or desirable; and
(E) evidence that all other actions necessary or in the opinion of the Lender desirable to perfect and protect the first priority Lien created by the Pledge Agreement, and to enhance the ability to preserve and protect its interest in and access to the Pledged Collateral, have been taken;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as Agent the Lender 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 Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as Agent the Lender may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that Borrower 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 counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower each Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements June 27, 2008 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 a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;; *** Confidential Treatment has been requested for portions of this Exhibit. Confidential portions of this Exhibit are designated by [****]. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(xviii) satisfactory evidence that the Borrower has terminated and paid all insurance required amounts owing in respect of that overdraft facility in the amount of JPY [****] extended by Bank of America to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and releasedVarian Medical Systems K.K.; and
(xiiix) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders Lender reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, the Borrower shall have paid all reasonable accrued and unpaid interest and commitment fees outstanding in respect of the Existing Credit Agreement.
(d) The Borrower shall have paid all fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) the Lender to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and Agentthe Lender).
(e) The Borrower shall have executed and delivered to the Lender the Lender’s standard International Foreign Exchange Master Agreement, together with any and all documents required thereunder.
(f) The Closing Date shall have occurred on or before November 10, 2008.
Appears in 1 contract
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:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of the Loan Documents, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a NoteNote and a Note executed by Cross UK in favor of the UK Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that each 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 Xxxxxxx Xxxxxx Xxxxxx and Dodge, LLP, counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agentthe Administrative Agent addressing such matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of Borrower each Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements 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) all insurance required to be maintained pursuant a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Loan Documents has been obtained and is in effectClosing Date;
(ixviii) a certificate duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on September 30, 2005, signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing DateBorrower;
(xix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xiix) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer, the UK Lender or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Cross a T Co)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf of and each party to this AgreementGuaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) each Collateral Document set forth on Schedule 1.01A, duly executed by each Loan Party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank; and
(B) evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) party or is to be a certificate of Borrower, dated party on the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-lawsDate;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formedopinions from (A) Wachtell, and that Borrower is validly existingLipton, in good standing and qualified to engage in business in each jurisdiction where its ownershipRosen & Katz, lease or operation of properties or the conduct of its business requires such qualification, except New York counsel to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectLoan Parties, substantiallx xx the xxxm of Exhibit G-1 and (B) Glenn W. Reed, General Counsel of the Borrower, substantially in the xxxx xx Exhibit G-2;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no change, effect, event or circumstance occurrence since the date of the Audited Financial Statements June 30, 2005, that has had or could would reasonably be reasonably expected to have, either individually or result in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effectChange;
(ixvii) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and the Loan Parties (taken as a whole) after giving effect to any Borrowingthe Transaction, or from the issuance Chief Financial Officer of any Letters of Credit, in each case, on the Closing DateBorrower;
(xviii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xiiix) such other assurancesa Committed Loan Notice or Letter of Credit Application, certificatesas applicable, documents, consents or opinions as Agent or relating to the Required Lenders reasonably may requireinitial Credit Extensions.
(b) Without duplication of amounts described in clause (c) below, any All fees and expenses required to be paid on or hereunder and invoiced before the Closing Date shall have been paidpaid in full in cash.
(c) Unless waived by AgentPrior to or simultaneously with the initial Credit Extensions, (i) the Equity Contribution shall have been made and (ii) the Mergers shall be consummated in accordance with the terms of the Merger Agreement and in accordance in all material respects with applicable Laws and regulatory approvals and the Merger Agreement (and no provision of the Merger Agreement shall have been waived, amended, supplemented or otherwise modified in a manner material and adverse to the Lenders without the consent of the Arrangers (such consent not unreasonably to be withheld)).
(d) Prior to or simultaneously with the initial Credit Extensions, the Borrower shall have paid all reasonable fees, charges and disbursements received at least $100,000,000 in gross cash proceeds from the issuance of counsel to Agent the Junior Subordinated Notes.
(directly to such counsel if requested by Agente) After giving effect to the extent invoicedTransaction, (i) Holdings and its Subsidiaries shall have outstanding no material Indebtedness or preferred Equity Interests other than (A) the Loans and L/C Obligations, (B) Student Loan Credit Facilities in an aggregate principal amount not in excess of $150,000,000, (C) the Junior Subordinated Notes and the Preferred Securities, (D) the Existing Junior Subordinated Notes and Existing Preferred Securities, and (E) Indebtedness listed on Schedule 7.03(b) and (ii) Holdings shall have outstanding no Equity Interests (or securities convertible into or exchangeable for Equity Interests or rights or options to acquire Equity Interests) other than common stock owned by the Equity Investors.
(f) Holdings shall have a corporate rating assigned to it by S&P.
(g) Each of the Insurance Subsidiaries that is a Domestic Subsidiary shall have received a financial strength rating from A.M. Best Company at least forty-five (45) days prior to or on the Closing Date.
(h) The representations and warranties contained in the Merger Agreement relating to the Company, plus such additional amounts its Subsidiaries and their respective businesses that are material to the interests of such feesthe Lenders shall be true and correct in all material respects on and as of the date of the initial Credit Extension unless, charges and disbursements as shall constitute its reasonable estimate a result of such fees, charges and disbursements incurred or any failure to be incurred by it through so true and correct, the closing proceedings (provided Investors do not have the right to terminate the Merger Agreement; PROVIDED that any such estimate representation and warranty that is qualified as to "materiality", "Material Adverse Effect" or similar language shall not thereafter preclude a final settling of accounts between Borrower be true and Agent)correct in all respects on such date.
Appears in 1 contract
Samples: Credit Agreement (Uici)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or Guarantor, each dated the Closing Date (oras applicable, 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 signed on behalf of and each party to this AgreementGuaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party or Guarantor, as applicable, thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) to the extent required under the Collateral and Guarantee Requirement, opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent; and
(C) evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party and each Guarantor 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 Borrower such Loan Party or such Guarantor is a party;
(iv) party or is to be a certificate of Borrower, dated party on the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-lawsDate;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formedan opinion from Skadden, and that Borrower is validly existingArps, in good standing and qualified to engage in business in each jurisdiction where its ownershipSlate, lease or operation of properties or the conduct of its business requires such qualificationXxxxxxx & Xxxx LLP, 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 New York counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to substantially in the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agentof Exhibit H;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedsince December 31, (B) that 2005 there has been no event Closing Date Material Adverse Effect (except as set forth in Section 4.9(a) of the disclosure letter delivered to Firestone Holdings by Freescale on or circumstance since prior to the execution of the Merger Agreement and/or as disclosed in Freescale’s Annual Report on Form 10-K for the year ended December 31, 2005 and Freescale’s Quarterly Reports on Form 10-Q for the periods ended March 31, 2006 and June 30, 2006, each as filed prior to the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or Commitment Letter (other than disclosures in the aggregate“Risk Factors” section of such Form 10-K and any other disclosures included in such filings that are predictive or forward-looking in nature));
(vii) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) on the Closing Date after giving effect to the Transaction, a Material Adverse Effect; and from the Chief Financial Officer of the Borrower;
(Cviii) evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and that the Administrative Agent has been named as loss payee and additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ix) a certificate signed certified copies of the Merger Agreement, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower attesting to the Solvency that such documents are in full force and effect as of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the Loan Documents has been obtained and is in effect;initial Credit Extension; and
(xi) evidence that all Indebtedness copies of a recent Lien and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may requireLoan Parties.
(b) Without duplication of amounts described in clause (c) below, any All fees and expenses required to be paid hereunder and invoiced on or before the Closing Date shall have been paidpaid in full in cash.
(c) Unless waived by AgentPrior to or simultaneously with the initial Credit Extension, (i) the Equity Contribution shall have been funded in full in cash; (ii) the Borrower shall have paid all reasonable fees, charges and disbursements received (whether directly as a result of counsel the Equity Contribution or as a result of an equity contribution by Holdings) cash proceeds from the Equity Contribution in an aggregate amount equal to Agent (directly to such counsel if requested by Agent) to at least 25% of the extent invoiced, prior to or aggregate pro forma capitalization of Parent on the Closing Date; and (iii) the Merger shall be consummated in accordance with the terms of the Merger Agreement (without giving effect to any amendments or waivers thereto that are materially adverse to the Lenders without the reasonable consent of the Agents) and in compliance with applicable material Laws and regulatory approvals.
(d) Prior to or simultaneously with the initial Credit Extensions, plus the Borrower shall have received at least $5,950,000,000 in gross cash proceeds from the issuance of the High Yield Notes.
(e) Prior to or simultaneously with the initial Credit Extensions, the Borrower shall have terminated the Existing Credit Agreement and any other existing indebtedness of Freescale (other than Indebtedness set forth on Schedule 7.03(b)), the Consent Solicitation shall have been effected and the supplemental indenture amending the indenture governing the Existing Notes contemplated thereby shall have been executed and delivered by the trustee thereunder and each other party thereto), and the Borrower shall have taken all other necessary actions such additional amounts that, after giving effect to the Transaction, (i) Parent and its Subsidiaries shall have outstanding no Indebtedness or preferred Equity Interests other than (A) the Loans and L/C Obligations, (B) the High Yield Notes, (C) Indebtedness listed on Schedule 7.03(b) and (D) Existing Notes not tendered in connection with the Tender Offer and (ii) the Borrower shall have outstanding no Equity Interests (or securities convertible into or exchangeable for Equity Interests or rights or options to acquire Equity Interests) other than common stock owned by Holdings and preferred stock owned by Holdings, with terms and conditions reasonably acceptable to the Arrangers to the extent material to the interests of the Lenders.
(f) The Administrative Agent shall have received (i) the Audited Financial Statements and the audit report for such feesfinancial statements (which shall not be subject to any qualification) and (ii) unaudited consolidated balance sheets and related statements of income, charges stockholders’ equity and disbursements as cash flows of Freescale and its Subsidiaries for each subsequent fiscal quarter ended at least forty-five (45) days before the Closing Date (the “Unaudited Financial Statements”), which financial statements shall constitute its reasonable estimate of such fees, charges be prepared in accordance with GAAP.
(g) The Arrangers shall have received all documentation and disbursements incurred or to be incurred other information reasonably requested in writing by it through in order to allow the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower Arrangers and Agent)the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer Fronting Bank and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, PDF copies or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of 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 Borrower is a partyDocuments;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that 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 opinions of Xxxxx & XxXxxxx LLP, counsel to the Loan Parties acceptable Borrower, and Xxxxxx X. Xxxx, in-house counsel to Agent the Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit E and such other matters concerning the Borrower and the Loan Documents in form and substance as the Required Lenders may reasonably satisfactory to Agentrequest;
(viivi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by the Borrower and the validity against 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 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) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ixviii) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) Material Insurance Subsidiary shall have been, or concurrently with the Closing Date will be, paid in full, discharged, and releasedan A- stable Financial Strength Rating; and
(xiiix) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the Fronting Bank or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) All loans, commitment fees, letter of credit fees, fronting fees and other fees and expenses accrued through the Closing Date under the Existing Credit Agreement shall have been paid in full; it being understood that Loans borrowed on the Closing Date shall be applied to the loans outstanding on the Closing Date under the Existing Credit Agreement through reallocation among the Lenders in accordance with the Applicable Percentages. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Tower 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:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of 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 Borrower is a partyDocuments;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in each the State of Delaware, as well as any other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of McGuireWoods LLP, counsel to the Loan Parties acceptable to Agent Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to AgentExhibit G;
(viivi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be 44 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 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 not previously disclosed in the Borrower's public filings with the SEC 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 Loan Documents has been obtained and is in effect;current Debt Ratings.
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(xviii) evidence that all insurance required to be maintained pursuant to the Loan Documents Existing Credit Agreement has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will beis being terminated and, paid in fullif applicable, discharged, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released; and
(xiiix) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid to the Administrative Agent and/or the Arrangers on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent, which settlement shall occur within thirty (30) days after the closing date if reasonably practicable).
(d) The Closing Date shall have occurred on or before September 30,2002.
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 under the Original Agreement was subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyCompany, each dated the Closing Date (or, in the case of 61 certificates of governmental officials, a reasonably recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreement, the Collateral Administration Agreement, the Sale Agreement signed on behalf of and the Investment Management Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Company;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer of Borrower the Company as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower the Company is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower the Company is duly organized or formedorganized, and that 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 EffectDelaware;
(viv) a favorable opinion of Dechert LLP, counsel to the Loan Parties acceptable to Agent Company, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning the Borrower, the Borrower Parent and the Loan Documents as the Required Lenders may reasonably request, including as to the treatment as a “true sale” for purposes of the Bankruptcy Code of the purchases of the Collateral Assets from time to time by the Borrower from Borrower Parent under the Sale Agreement and to the effect that the Borrower would not be substantively consolidated with Borrower Parent in form the event of a proceeding under the Bankruptcy Code;
(vi) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and substance (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 satisfactory expected to Agenthave, either individually or in the aggregate, a Material Adverse Effect;
(vii) a certificate of a Responsible Officer of Borrower the Company either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower the Company and the validity against Borrower the Company of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer evidence satisfactory to the Administrative Agent in its sole discretion that the Net Asset Value of Borrower certifying is at least equal to $10,000,000;
(Aix) evidence satisfactory to the Administrative Agent in its sole discretion that since the conditions specified in Sections 4.02(a) and (b) have been satisfieddate of the most recent Audited Financial Statements, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to havecircumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;and
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date that have been invoiced shall have been paid.
(c) Unless waived by the Administrative Agent, Borrower the Company shall have paid all reasonable and documented fees, charges and disbursements of outside counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent); provided, however, that such fees, charges and disbursements shall only be due and payable to the extent provided pursuant to Section 10.04.
(d) The representations and warranties of (i) the Borrower contained in Article V and (ii) the Borrower and AgentBorrower Parent contained in each other Loan Document, or which are contained in any document (including the Beneficial Ownership Certification) furnished at any time under or in connection herewith or therewith, shall be true and correct (in all material respects, or as so qualified, as applicable) on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct (in all material respects, or as so qualified, as applicable) as of such earlier date.
(e) No Default shall exist, or would result from such Credit Extension or from the application of the proceeds thereof.
(f) The Administrative Agent and the Lenders shall have a valid and perfected first-priority lien and security interest in the Collateral, all filings (including all UCC financing statements and similar filings contemplated by the Sale Agreement, including all back-up filings in relation to Collateral Assets sold thereunder), recordations and searches necessary or desirable in connection with the Collateral shall have been duly made, and all filing and recording fees and taxes shall have been duly paid, including in each case under, and as required by, all applicable laws.
(g) All governmental and third party approvals reasonably necessary or, in the discretion of the Lender, advisable in connection with the Credit Extension shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the Lender making the Credit Extension.
(h) The initial Lender shall have received and reviewed all financial statements required to be delivered under Section 6.01 and, in each case, such financial statements shall be satisfactory to the initial Lender in its sole discretion.
(i) Upon the reasonable written request of any Lender, the Company shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act.
(j) If the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, then the Company shall deliver, to each Lender that so requests in writing, a Beneficial Ownership Certification in relation to such Company. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to the prior or substantially concurrent satisfaction of the following conditions precedent:
(a) The Lead Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to Agent and each of the LendersLead Administrative Agent:
(i) executed counterparts of this Agreement signed on behalf of each party to this Agreement;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a NoteNotes, each of which shall be originals or telecopies (followed promptly by originals);
(iii) such customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Lead 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 the Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such customary documents and certifications of public officials as the Lead Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, existing and in good standing and qualified to engage in business in each its jurisdiction where its ownershipof organization;
(v) a customary opinion of Proskauer Rose LLP, lease or operation of properties or the conduct of its business requires such qualification, except counsel to the extent that failure Borrower, reasonably satisfactory to do so could not reasonably be expected the Lead Administrative Agent and addressed to have a Material Adverse Effectthe Lead Administrative Agent and each Lender;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent[Reserved];
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 customary certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance except with respect to the Disclosed Matters since the date of 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 and
(Cviii) all insurance required to be maintained pursuant to customary evidence that the Loan Documents Existing Credit Agreement has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may requireis being terminated.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid hereunder and pursuant to the Fee Letters on or before the Closing Date shall have been paid.
(c) Unless waived by the Lead Administrative Agent, the Borrower shall have paid all reasonable fees, and documented fees and out-of-pocket charges and disbursements of counsel to the Lead Administrative Agent (directly to such counsel if requested by the Lead Administrative Agent) to the extent invoiced, payable hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Lead Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Lead Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to immaterial matters or items specified in clause (vi) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (which is not a Material Foreign Subsidiary), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) unless otherwise specified 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 signed on behalf Agreement, the Guaranty and the Security Agreements (together with related UCC-1 financing statements, stock certificates for all Capital Stock of the Borrower and each party Material Domestic Subsidiary, insurance certificates naming the Administrative Agent as loss payee/mortgagee (insuring the value of the Collateral) and additional insured), sufficient in number for distribution to this Agreementthe Administrative Agent, each Lender and the Borrower;
(ii) a Note Revolving Loan Notes executed by the Borrower in favor of each Lender requesting Lender, each in a Noteprincipal amount equal to such Lender's Revolving Commitment;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender in the principal amount of the Swing Line Sublimit;
(iv) Term Loan Notes executed by the Borrower in favor of each Lender, each in a principal amount equal to such Lender's Term Commitment;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party (which is not a Material Foreign Subsidiary) as the Administrative Agent may reasonably require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(vvi) such documents and certifications evidence as the Administrative Agent may reasonably require to evidence verify that Borrower each Loan Party (which is not a Material Foreign Subsidiary) is duly organized or formed, and that Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownershipin which it is required to be qualified to engage in business, lease or operation including certified copies of properties or the conduct each such Loan Party's Organization Documents, certificates of its good standing and/or qualification to engage in 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 counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agenttax clearance certificates;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 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 which has had or could be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; ;
(viii) an opinion of counsel to each Loan Party (which is not a Material Foreign Subsidiary) in form and (C) all insurance required to be maintained pursuant substance reasonably satisfactory to the Loan Documents has been obtained and is in effectAdministrative Agent;
(ix) Landlord Waivers for leased property on which all inventory Collateral of the Borrower and its Material Domestic Subsidiaries (other than such Collateral not to exceed $2,000,000 in aggregate amount) is located;
(x) a certificate signed Compliance Certificate (prepared on a pro forma basis, taking into account the Merger and the making of the initial Loans and any Letters of Credit issued hereunder on the Closing Date, with a pro forma calculation of the Leverage Ratio, Fixed Charge Coverage Ratio and Asset Coverage Ratio indicating that the Leverage Ratio does not exceed 2.25 to 1, the Fixed Charge Coverage Ratio is not less than 1.15 to 1 and the Asset Coverage Ratio is not less than 1.25 to 1), which has been completed and duly executed by a Responsible Officer of Borrower attesting to the Solvency Borrower, and which is dated as of Borrower both before and after giving effect to any BorrowingOctober 31, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect2001;
(xi) evidence that all Indebtedness Merger Documents, which shall be reasonably satisfactory to the Administrative Agent;
(xii) the Merger shall occur contemporaneously on the terms and all Liens conditions provided in the Merger Agreement (other than Indebtedness permitted under Section 7.02 including satisfaction of the conditions set forth therein). There shall not have been any material modification, amendment, supplement or waiver to the Merger Agreement without the prior written consent of the Administrative Agent;
(xiii) if an opinion is rendered as to the fairness of the Merger, a copy of such opinion;
(xiv) consolidated and Liens permitted under Section 7.01) have beenconsolidating financial statements of the Borrower and its Subsidiaries for the fiscal quarter ending October 31, or concurrently with the Closing Date will be, paid in full, discharged, and released2001; and
(xiixv) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). The making of the initial Loans by the Lenders hereunder shall conclusively be deemed to constitute an acknowledgment by the Administrative Agent and each Lender that each of the conditions precedent set forth in this Section 4.01 shall have been satisfied in accordance with its respective terms or shall have been irrevocably waived by such Person, except to the extent that certain conditions precedent are required by the Lenders to be obtained and/or delivered after the Closing Date.
Appears in 1 contract
Samples: Credit Agreement (NCH Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyCompany, each dated the Closing Date (or, in the case of certificates of governmental officials, a reasonably recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreement, the Collateral Administration Agreement, the Sale Agreement signed on behalf of and the Investment Management Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Company;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer of Borrower the Company as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower the Company is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower the Company is duly organized or formedorganized, and that 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 EffectDelaware;
(viv) a favorable opinion of Dechert LLP, counsel to the Loan Parties acceptable to Agent Company, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning the Borrower, the Borrower Parent and the Loan Documents as the Required Lenders may reasonably request, including as to the treatment as a “true sale” for purposes of the Bankruptcy Code of the purchases of the Collateral Assets from time to time by the Borrower from Borrower Parent under the Sale Agreement and to the effect that the Borrower would not be substantively consolidated with Borrower Parent in form the event of a proceeding under the Bankruptcy Code;
(vi) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and substance (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 satisfactory expected to Agenthave, either individually or in the aggregate, a Material Adverse Effect;
(vii) a certificate of a Responsible Officer of Borrower the Company either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower the Company and the validity against Borrower the Company of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer evidence satisfactory to the Administrative Agent in its sole discretion that the Net Asset Value of Borrower certifying is at least equal to $10,000,000;
(Aix) evidence satisfactory to the Administrative Agent in its sole discretion that since the conditions specified in Sections 4.02(a) and (b) have been satisfieddate of the most recent Audited Financial Statements, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to havecircumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;and
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date that have been invoiced shall have been paid.
(c) Unless waived by the Administrative Agent, Borrower the Company shall have paid all reasonable and documented fees, charges and disbursements of outside counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent); provided, however, that such fees, charges and disbursements shall only be due and payable to the extent provided pursuant to Section 10.04.
(d) The representations and warranties of (i) the Borrower contained in Article V and (ii) the Borrower and AgentBorrower Parent contained in each other Loan Document, or which are contained in any document (including the Beneficial Ownership Certification) furnished at any time under or in connection herewith or therewith, shall be true and correct (in all material respects, or as so qualified, as applicable) on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct (in all material respects, or as so qualified, as applicable) as of such earlier date.
(e) No Default shall exist, or would result from such Credit Extension or from the application of the proceeds thereof.
(f) The Administrative Agent and the Lenders shall have a valid and perfected first-priority lien and security interest in the Collateral, all filings (including all UCC financing statements and similar filings contemplated by the Sale Agreement, including all back-up filings in relation to Collateral Assets sold thereunder), recordations and searches necessary or desirable in connection with the Collateral shall have been duly made, and all filing and recording fees and taxes shall have been duly paid, including in each case under, and as required by, all applicable laws.
(g) All governmental and third party approvals reasonably necessary or, in the discretion of the Lender, advisable in connection with the Credit Extension shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the Lender making the Credit Extension.
(h) The initial Lender shall have received and reviewed all financial statements required to be delivered under Section 6.01 and, in each case, such financial statements shall be satisfactory to the initial Lender in its sole discretion.
(i) Upon the reasonable written request of any Lender, the Company shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act.
(j) If the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, then the Company shall deliver, to each Lender that so requests in writing, a Beneficial Ownership Certification in relation to such Company. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Blackstone / GSO Secured Lending Fund)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals originals, electronic copies or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated on or about the 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 signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Revolving Credit Note executed by the Borrower in favor of each Lender requesting a Revolving Credit Note;
(iii) the Swing Line Note executed by the Borrower, if requested by the Swing Line Lender;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as of or about the Closing Date 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 the Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower as of or about the Closing Date is validly existing, existing and in good standing and qualified to engage in business in each jurisdiction where its ownership, lease state of incorporation 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 and/or domicile;
(vi) a favorable opinion of Xxxxx & Xxxxxxx LLP, counsel to the Loan Parties acceptable to Agent Borrower, addressed to the Administrative Agent and each Lender, as to matters concerning the matters set forth concerning Borrower and the Loan Documents in form and substance (including enforceability of the Loan Documents under New York law) as the Required Lenders may reasonably satisfactory to Agentrequest;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 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) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(xviii) evidence that all insurance required to be maintained pursuant to the Loan Documents Existing Credit Agreement has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, is being terminated and releasedthat obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being satisfied; and
(xiiix) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause Any fees (cincluding upfront fees to the Lenders) below, any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel (to the extent the Borrower has agreed to be liable therefor) to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, prior to or on invoiced at least three (3) days in advance of the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before April 30, 2012. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall promptly notify the Borrower and the Lenders of the occurrence of the Closing Date, which notice shall be conclusive and binding.
Appears in 1 contract
Samples: Credit Agreement (Fidelity National Financial, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder on or after the Fourth Restatement Effective Date is subject to satisfaction of the following conditions precedentprecedent except as otherwise agreed between the Borrowers and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or a Guarantor, each dated the Closing Date (oras applicable, 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:its legal counsel (subject to Section 6.13(c)):
(i) executed counterparts of this Agreement signed on behalf of Agreement, the Security Agreement, and each party to this AgreementGuaranty;
(ii) a Note Notes executed by Borrower the Borrowers in favor of each Lender requesting a Notethat has requested Notes at least two Business Days in advance of the Fourth Restatement Effective Date;
(iii) the elements of the Collateral and Guarantee Requirement required to be satisfied on the Fourth Restatement Effective Date shall have been satisfied and each Collateral Document set forth on Schedule 1.01B required to be executed on the Fourth Restatement Effective Date as indicated on such schedule, duly executed by each Loan Party or a Guarantor (including the Ram Acquired Companies), as applicable, thereto, together with evidence that all other actions, searches, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; provided that to the extent any lien search, Collateral or insurance referred to in this clause (iii) (other than pledge and perfection of security interests in Equity Interests of Domestic Subsidiaries of the Borrowers and the Guarantors (to the extent required hereunder) and other assets with respect to which a Lien may be perfected by the filing of a financing agreement under the Uniform Commercial Code) is not provided on the Fourth Restatement Effective Date after the Borrowers’ use of commercially reasonable efforts to do so, the delivery of such lien search, Collateral or insurance referred to in clause (iii) above shall not constitute a condition precedent to the availability of the Revolving Loans on the Fourth Restatement Effective Date but shall be required to be delivered after the Fourth Restatement Effective Date pursuant to Section 6.13(c) (it being understood that, due to the eligibility requirements set forth in the definitions of “Eligible Accounts”, “Eligible Inventory”, “Eligible In-Transit Inventory”, “Eligible Real Property” and “Eligible Rolling Stock”, Excess Availability may be adversely affected if the above mentioned conditions are not satisfied);
(iv) (A) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party and each Guarantor (including the Ram Acquired Companies) 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 Borrower such Loan Party or such Guarantor is a party;
(iv) party or is to be a certificate of Borrowerparty on the Fourth Restatement Effective Date, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear a good standing certificate from the signatures applicable Governmental Authority of each officer authorized to sign the Loan Documents, Party’s and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the each Guarantor’s jurisdiction of incorporation, organization of Borrower and or formation, each dated a true and correct copy of its by-lawsrecent date prior to the Fourth Restatement Effective Date;
(v) such documents and certifications as Agent may reasonably require (A) an opinion from Xxxxxx Xxxxxxx Xxxxx LLP, New York counsel to evidence that Borrower is duly organized or formedthe Loan Parties, and that Borrower is validly existing(B) opinions of local counsel to the Loan Parties, which opinions, in good standing and qualified to engage in business in each jurisdiction where its ownershipcase, lease or operation of properties or the conduct of its business requires such qualification, except shall be reasonably acceptable to the extent that failure Administrative Agent with regard to do so could not such matters of law as the Administrative Agent shall reasonably be expected to have a Material Adverse Effectrequest;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedsince June 29, (B) that 2019, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(vii) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Fourth Restatement Effective Date after giving effect to the Transactions, from the Treasurer of Holdings;
(viii) [reserved]; and and
(Cix) subject to clause (iii) above, evidence that all insurance (other than title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and that the Administrative Agent has been named as loss payee and additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ixb) a certificate signed All fees and expenses required to be paid hereunder, under the Fee Letter and invoiced on or before the Fourth Restatement Effective Date shall have been paid in full in cash or will be paid on the Fourth Restatement Effective Date.
(c) The Administrative Agent shall have received (i) unaudited consolidated balance sheets and related statements of income and cash flows of Holdings and its Subsidiaries and, if different, of Holdings and its Restricted Subsidiaries for the most recently ended fiscal quarter ending at least 45 days before the Fourth Restatement Effective Date, (ii) quarterly projected consolidated balance sheets of Holdings and its Subsidiaries (prepared by a Responsible Officer of Borrower attesting giving Pro Forma Effect to the Solvency Transactions) as of Borrower both each fiscal quarter end through the end of the fiscal year 2019, and the related consolidated statements of projected cash flow and projected income and a summary of the material underlying assumptions applicable thereto, and (iii) annual projected consolidated balance sheets of Holdings and its Subsidiaries (prepared by giving Pro Forma Effect to the Transactions) as of each fiscal year end for each of fiscal years 2020 through and including 2024, and the related consolidated statements of projected cash flow and projected income and a summary of the material underlying assumptions applicable thereto (and such projections shall not be inconsistent with information provided to Xxxxx Fargo before the Fourth Restatement Effective Date).
(d) The Ram Acquisition shall have been consummated or shall be consummated substantially concurrently with the Borrowings of initial Revolving Loans and after giving effect to any Borrowing, or the issuance of any Letters of CreditLOTL Loans hereunder, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently accordance with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or terms of the Required Lenders reasonably may requireRam Acquisition Agreement.
(b) Without duplication of amounts described in clause (c) below, any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Guaranty, the Security Agreement signed on behalf (together with related UCC-1 financing statements, stock certificates for all Equity Interests owned by the Loan Parties in each Domestic Subsidiary of the Borrower (other than TXI Capital Trust I), stock certificates for 66% of the Equity Interests in the Foreign Subsidiaries owned directly by the Borrower or a Domestic Subsidiary, and undated stock powers duly executed in blank) sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note receipt of certificates of insurance and endorsements to insurance policies naming the Administrative Agent as loss payee with respect to all Collateral;
(iii) copies of all UCC searches of the Borrower and its Domestic Subsidiaries, each such search showing no Liens except Permitted Liens;
(iv) Revolving Loan Notes executed by the Borrower in favor of each Lender requesting a Revolving Loan Note;
(iiiv) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(vvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that Borrower 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;
(viviii) a favorable opinion of Xxxxxxxx & Xxxxxx L.L.P., counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit D and such other matters concerning Borrower the Loan Parties and the Loan Documents in form and substance as the Administrative Agent may reasonably satisfactory to Agentrequest;
(viiix) a certificate of a Responsible Officer of Borrower each Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiix) a certificate signed by a Responsible Officer of the 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 Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, the Existing Credit Agreement has been or concurrently with the Closing Date will be, paid is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(xii) the 2005 Senior Notes shall have been issued;
(xiii) a solvency certificate signed by the Chief Financial Officer of the Borrower in full, discharged, form and releasedsubstance satisfactory to the Administrative Agent; and
(xiixiv) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) There shall not have occurred a material adverse change (x) in the business, assets, properties, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries, taken as a whole, since May 31, 2004 or (y) in the facts and information regarding such entities represented to date.
(e) The initial Credit Extension shall have occurred on or before September 30, 2005.
(f) After giving effect to the initial Credit Extension, the (i) Leverage Ratio (calculated for purposes of this Section 4.01(f) only, to deduct from the amount of Total Debt the aggregate amount of cash (x) on deposit with the Administrative Agent and subject to a perfected, first priority security interest pursuant to a deposit account control agreement and (y) on deposit with the trustee for the 2003 Senior Notes which qualifies as eligible funds for the defeasance thereof, but not to exceed the amount of such notes to be outstanding after the initial Credit Extension), on a pro forma basis, shall not exceed 2.50 to 1.00 and (ii) Availability shall not be less than $125,000,000. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedentprecedent except as otherwise agreed between the Borrowers and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or a Guarantor, each dated the Closing Date (oras applicable, 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:its legal counsel (subject to Section 6.13(c)):
(i) executed counterparts of this Agreement signed on behalf of and each party to this AgreementGuaranty;
(ii) a Note executed by Borrower the Borrowers in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) the elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and each Collateral Document set forth on Schedule 1.01B required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party or a Guarantor, as applicable, thereto, together with:
(A) to the extent required under the Collateral and Guarantee Requirement, opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent and Collateral Agent; and
(B) evidence that all other actions, searches, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) provided that to the extent any lien search, Guarantee, Collateral or insurance referred to in clause (iii) above (other than pledge and perfection of security interests in Equity Interests of Domestic Subsidiaries of the Borrowers and the Guarantors (to the extent required hereunder) and other assets with respect to which a Lien may be perfected by the filing of a financing agreement under the Uniform Commercial Code) is not provided on the Closing Date after the Borrowers’ use of commercially reasonable efforts to do so, the delivery of such lien search, Guarantee, Collateral or insurance referred to in clause (iii) above shall not constitute a condition precedent to the availability of the Revolving Loans on the Closing Date but shall be required to be delivered after the Closing Date pursuant to Section 6.13(c) (it being understood that, due to the eligibility requirements set forth in the definitions of “Eligible Accounts”, “Eligible Inventory”, “Eligible In-Transit Inventory”, “Eligible Real Property” and “Eligible Rolling Stock”, Excess Availability may be adversely affected if the above mentioned conditions are not satisfied);
(v) (A) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party and each Guarantor 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 Borrower such Loan Party or such Guarantor is a party;
(iv) party or is to be a certificate of Borrower, dated party on the Closing Date Date, and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear a good standing certificate from the signatures applicable Governmental Authority of each officer authorized to sign the Loan Documents, Party’s and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the each Guarantor’s jurisdiction of incorporation, organization of Borrower and or formation, each dated a true and correct copy of its by-laws;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formed, and that 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 recent date prior to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectClosing Date;
(vi) a favorable (A) an opinion of from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, New York counsel to the Loan Parties substantially in the form of Exhibit G and (B) an opinion of local counsel to the Loan Parties reasonably acceptable to the Administrative Agent addressed with regard to such matters of law as the Administrative Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance shall reasonably satisfactory to Agentrequest;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedsince July 2, (B) that 2011, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; ;
(viii) a certificate attesting to the Solvency of Holdings and its Subsidiaries (Ctaken as a whole) on the Closing Date after giving effect to the Transactions, from the Treasurer of Holdings;
(ix) evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting effect and that the Administrative Agent has been named as loss payee and additional insured under each insurance policy with respect to such insurance as to which the Solvency of Borrower both before and after giving effect Administrative Agent shall have requested to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Datebe so named;
(x) evidence that all insurance required to be maintained pursuant copies of a recent Lien and judgment, tax, patent and trademark searches in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may requireParties.
(b) Without duplication of amounts described in clause (c) below, any All fees and expenses required to be paid hereunder, under the Fee Letter and invoiced on or before the Closing Date shall have been paidpaid in full in cash or will be paid on the Closing Date.
(c) Unless waived by Agent, Borrower The Administrative Agent shall have paid received (i) unaudited consolidated balance sheets and related statements of income and cash flows of Holdings and its Subsidiaries and, if different of Holdings and its Restricted Subsidiaries for the fiscal quarter ending Xxxxx 00, 0000, (xx) quarterly projected consolidated balance sheets of Holdings and its Subsidiaries as of each fiscal quarter end through the end of the fiscal year 2013, and the related consolidated statements of projected cash flow and projected income and a summary of the material underlying assumptions applicable thereto, and (iii) annual projected consolidated balance sheets of Holdings and its Subsidiaries as of each fiscal year end for each fiscal year after 2013 and through the Maturity Date, and the related consolidated statements of projected cash flow and projected income and a summary of the material underlying assumptions applicable thereto.
(d) The Administrative Agent shall have received all reasonable feesdocumentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, charges and disbursements including the USA PATRIOT Act that has been requested reasonably in advance of counsel to the Closing Date.
(e) The Administrative Agent (directly to such counsel if requested by Agent) shall have received a Borrowing Base Certificate dated the Closing Date, relating to the extent invoicedmonth ended on March 31, prior 2012, and executed by the Treasurer of the Lead Borrower, and such Borrowing Base Certificate shall reflect an Excess Availability (after giving effect to or (without duplication) the Transactions and the Credit Extensions made on the Closing Date, plus such additional amounts if any) of such feesat least $200,000,000.
(f) The Administrative Agent shall have received, charges in form and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or substance reasonably satisfactory to be incurred by the Administrative Agent (i) customary inventory appraisals (it through being agreed that the closing proceedings (existing inventory appraisals are satisfactory provided that such estimate shall not thereafter preclude the Closing Date occurs on or before June 30, 2012) and (ii) the results of a final settling field exam of accounts between Borrower the business of the Loan Parties and Agent)the Collateral.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to immaterial matters or items specified in clause (iv) or (v) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower to the extent the Borrower’s signature is required thereon, each dated the 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 signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note Revolving Loan Notes executed by the Borrower in favor of each Lender requesting such a Note, each in a principal amount equal to such Lender’s Commitment as of the Closing Date;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender (if the Swing Line Lender requests such a Note) in the principal amount of the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications evidence as the Administrative Agent may reasonably require to evidence verify that the Borrower is duly organized or formed, and that Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownershipin which it is required to be qualified to engage in business, lease or operation including certified copies of properties or the conduct Borrower’s Organization Documents, certificates of its good standing and/or qualification to engage in business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectand tax clearance certificates;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that which 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 the current Debt Ratings;
(vii) an opinion of Xxxxxxx Xxxxx LLP, counsel to the Loan Documents has been obtained and is Borrower, substantially in effectthe form of Exhibit H-1;
(viii) an opinion of Xxxxxxxx X. Xxxxxxx, General Counsel of the Borrower, substantially in the form of Exhibit H-2;
(ix) copy of a certificate signed by a Responsible Officer notice from Borrower to Bank of Borrower attesting to America terminating the Solvency Credit Agreement dated as of Borrower both before June 27, 2001, among Borrower, Bank of America, N.A., as administrative agent, and after giving effect to any Borrowingthe other agents and lenders parties thereto, or and the issuance Second Amended and Restated 364-Day Credit Agreement dated as of any Letters June 19, 2003, among Borrower, Bank of CreditAmerica, in each caseN.A., on as administrative agent, and the other agents and lenders parties thereto, concurrent with the Closing Date, which shall specify that Borrower has paid all obligations and indebtedness thereunder and shall have been acknowledged by Bank of America;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurancescertificates or documents as the Administrative Agent, certificatesthe L/C Issuer, documents, consents or opinions as Agent the Swing Line Lender or the Required Majority Lenders may reasonably may require.request;
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.; and
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced at least three 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 Borrower and Agent).
Appears in 1 contract
Samples: Credit Agreement (Bj Services Co)
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of each party to this Agreementand the Guaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) a Pledge Agreement, in substantially the form of Exhibit G (together with each other pledge agreement and pledge agreement supplement delivered pursuant to Section 6.12, the “Pledge Agreement”), duly executed by the Borrower and each issuer of Equity Interests subject thereto, together with:
(A) certificates representing the certificated Collateral referred to therein accompanied by undated stock powers executed in blank, and
(B) evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby; provided that to the extent the pledge of the Equity Interests of any Regulated Insurance Company requires the approval or consent of, notice to or filing with, a Governmental Authority, such approval, consent, notice or filing may be obtained or completed as soon as reasonably possible after the Closing Date;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party (or the Borrower on behalf of each Loan Party) as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party or is to be a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that Borrower 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 Dechert LLP, counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H and such other matters concerning Borrower the Loan Parties and the Loan Documents in form and substance as the Administrative Agent may reasonably satisfactory to Agentrequest;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Borrower certifying (A) that the conditions specified in Sections 4.02(a4.01(f) and (bh) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements January 11, 2012 that has had or could would be reasonably expected to have, either individually or in the aggregate, a Company Material Adverse Effect; and , (C) all insurance required to be maintained pursuant a calculation of the Consolidated Leverage Ratio as of the Closing Date in accordance with Schedule 4.01(a) attached hereto and after giving pro forma effect to the Loan Documents has been obtained Transactions, which Consolidated Leverage Ratio shall not be greater than 1.80:1.00 and (D) that the Acquisition Agreement is in effectfull force and effect and that no material default or event of default exists thereunder;
(viii) (i) the Audited Financial Statements (other than the Audited Financial Statements for fiscal year ended December 31, 2011) of the Borrower and the audited balance sheets of the Acquired Business for the fiscal years ended December 31, 2008, December 31, 2009, December 31, 2010, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal years of the Acquired Business, including the notes thereto, (ii) to the extent available prior to the Closing Date, the Audited Financial Statements of the Borrower and the Acquired Business for fiscal year ended December 31, 2011 as soon as such financial statements become available, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Borrower and the Acquired Business, including the notes thereto, and (iii) unaudited financial statements for any interim period or periods of the Borrower and the Acquired Business ended at least 45 days prior to the Closing Date, as well as the pro forma financial statements of the Borrower described in Section 5.05(f);
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of each of the Borrower both and the Borrower and its Subsidiaries, taken as a whole, before and after giving effect to any Borrowingthe Transactions, or executed by the issuance chief financial officer of any Letters of Credit, in each case, on the Closing DateBorrower;
(x) evidence that copies of the Acquisition Agreement, duly executed by the parties thereto, together with all insurance required to be maintained pursuant to agreements, instruments and other documents delivered in connection therewith as the Loan Documents has been obtained and is in effectAdministrative Agent shall reasonably request;
(xi) evidence that all Indebtedness the Acquisition shall have been consummated pursuant to the Acquisition Agreement, without amendment or waiver of any provision thereof that is material and all Liens adverse to the interests of the Lenders and that has not been consented to (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01which consent shall not be unreasonably withheld, conditioned or delayed) have been, or by MLPFS;
(xii) evidence that concurrently with the Closing Date will beconsummation of the Acquisition, the existing credit facility of the Acquired Business shall have been terminated, all outstanding indebtedness thereunder shall have been paid in full, dischargedand all material liens or security interests (other than any liens or security interests permitted under the Loan Documents) related thereto shall have been terminated or released, in each case on terms reasonably satisfactory to the Administrative Agent and releasedMLPFS; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders may reasonably may require.
(bi) Without duplication of amounts described in clause (c) below, any All fees required to be paid to the Administrative Agent and MLPFS 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 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, invoiced in reasonable detail no later than two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) Equity Interests shall have been issued by the Borrower and the amount of such Equity Interests, together with the Borrower’s cash on hand and the proceeds from the Borrowings made on the Closing Date pursuant to the Term Facility, shall be sufficient to consummate the Acquisition and to pay related fees, commissions and expenses.
(e) After giving effect to the Transactions to be effected on the Closing Date, there shall not exist any material default or event of default under any other material Indebtedness of the Borrower or any of its Subsidiaries to remain outstanding after the consummation of such Transactions.
(f) No Default shall exist, or would exist under Section 8.01(k) after such proposed Credit Extension and the application of the proceeds thereof.
(g) The Administrative Agent and, if applicable, the applicable L/C Issuer shall have received a Request for Credit Extension in accordance with the requirements hereof.
(h) The satisfaction of the condition precedent set forth in Section 4.02(a).
(i) The Closing Date shall have occurred on or before May 10, 2012. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:precedent (it being understood that the conditions in this Section 4.01 were satisfied on the Closing Date, the conditions precedent to all amendments prior to Amendment No. 14 were satisfied on the date each such amendment became effective, and the only conditions to the effectiveness of (x) the 2021 Refinancing Amendment on the 2021 Refinancing Amendment Effective Date are set forth in the 2021 Refinancing Amendment and (y) Amendment No. 1014 on the Amendment No. 1014 Effective Date are set forth in the Amendment No. 1014):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Guaranty, and the Security and Pledge Agreement signed on behalf of executed by each Person a party to this Agreementthereto;
(ii) a Note executed by Borrower the applicable Borrowers in favor of each Lender requesting a NoteNote with respect to the applicable Facility;
(iii) such customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower and each Material Guarantor 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 or Material Guarantor is a party or is to be a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower and each Material Guarantor is duly organized or formed, and that each Borrower and each Material 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 customary opinions of Gxxxxx, Dxxx & Cxxxxxxx LLP and certain local counsel, in each case counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, dated as to of the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to AgentClosing Date;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 Borrower the Company certifying that (A) that the conditions specified in Sections 4.02(aSection 4.01(c) and (b4.01(d) have been satisfied, satisfied and (B) that there has been no event or circumstance since each of the Specified Representations and the Specified Purchase Agreement Representations are true and correct in all material respect (or, with respect to representations and warranties modified by materiality standards, in all respects) on and as of the date of the Audited Financial Statements that has had or could be reasonably expected to havesuch Credit Extension, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant except to the Loan Documents has been obtained extent that such representations and is warranties specifically refer to an earlier date, in effectwhich case they shall be true and correct as of such earlier date;
(ixvii) a solvency certificate substantially in the form of Exhibit J signed by a Responsible Officer the chief financial officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing DateCompany;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to immaterial matters or items specified in clause (v) or (vi) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the LendersAdministrative Agent:
(i) executed counterparts of this Agreement signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note, each in a principal amount equal to such Lender's Commitment;
(iii) the Audited Financial Statements and unaudited financial statements for the fiscal quarter ended September 30, 2002;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers of Borrower Officer as the Administrative Agent may reasonably require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications evidence as the Administrative Agent may reasonably require to evidence verify that the Borrower is duly organized or formed, and that Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownershipin which it is required to be qualified to engage in business, lease or operation including a certified copy of properties or the conduct Borrower's Organization Documents, certificates of its good standing and/or qualification to engage in business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectand tax clearance certificates;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that which has had or could be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; and , (C) all the current Debt Ratings or Corporate Credit Ratings, as applicable, and (D) the properties of the Borrower and its Material Subsidiaries are insured with financially sound and reputable insurance required to be maintained pursuant to companies in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Loan Documents has been obtained Borrower and is in effectits Subsidiaries operate;
(ixvii) a certificate signed by a Responsible Officer an opinion of Borrower attesting counsel to the Solvency Borrower substantially in the form of Exhibit E;
(viii) evidence that the Borrower both before is entering into the Amended and after giving effect Restated 364-Day Credit Agreement to any Borrowing, or the issuance be effective as of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xiiix) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies .pdf format files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of and the Guaranty, duly executed by each party to this AgreementLoan Party thereto;
(ii) a Note executed counterparts of the Pledge Agreement, duly executed by each Loan Party, together with:
(A) certificates representing the Pledged Equity referred to therein, accompanied by undated stock powers executed in blank in the case of certificated Pledged Equity,
(B) proper financing statements, either duly filed on or before the day of the initial Credit Extension or 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 Pledge Agreement, covering the Collateral described in the Pledge Agreement,
(C) evidence of the completion of all other actions, recordings and filings of or with respect to the Collateral or the Pledge Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby, and
(D) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge Agreement has been taken;
(iii) Notes executed by the Borrower in favor of each Lender requesting a NoteNotes;
(iiiiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that Borrower is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownershipof formation and (x) in the case of the Borrower, lease or operation also in California, New York, Oregon, Missouri, New Hampshire and Washington, (y) in the case of properties or MEMC Pasadena, Inc., a Guarantor, also in Louisiana, and (z) in the conduct case of its business requires such qualificationthe Sun Edison LLC, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectGuarantor, also in California, Oregon, Massachusetts, Colorado, Maryland, Texas and New Jersey;
(vi) a favorable opinion of Xxxxx Xxxx LLP, counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, as to substantially in the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agentof Exhibit H hereto;
(vii) a certificate of a Responsible Officer of Borrower the Borrower:
(A) either (Ax) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (By) stating that no such consents, licenses or approvals are so required;
(viiiB) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, ; and
(BC) certifying that there has been no event or circumstance (x) 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 (Cy) all insurance required since November 23, 2009 that purports to be maintained pursuant adversely affect this Agreement, any other Loan Document or any other aspect of the transactions contemplated hereby;
(viii) a duly executed solvency certificate of the Chief Financial Officer (or another financial officer satisfactory to the Loan Documents has been obtained Administrative Agent) of the Borrower in form and is substance reasonably satisfactory to the Administrative Agent and each of the Lenders and confirming the representation and warranty set forth in effectSection 5.19;
(ix) a certificate signed by a Responsible Officer certificates of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Creditinsurance and/or other evidence, in each casecase in form and substance reasonably satisfactory to the Administrative Agent, on demonstrating compliance with the Closing Dateinsurance requirements of this Agreement;
(x) evidence that all insurance required to be maintained pursuant to each of the Loan Documents Existing Credit Agreements has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will beis being terminated and all Liens securing obligations under each Existing Credit Agreement, paid in fullif any, discharged, and have been or concurrently with the Closing Date are being released; and
(xiixi) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer Issuers and each Lender the Lenders to make its the initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer on behalf of the signing Loan PartyParty to the extent execution thereof is contemplated thereby (and, if applicable, by the Administrative Agent, the Collateral Agent and/or the Lenders) each dated the 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, the Collateral Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed Agreement, the MGM Resorts Completion Guarantee and the Guaranty, to the extent there are any Guarantors on behalf of each party to this Agreementthe Closing Date;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) the Security Agreement duly executed by each Loan Party, together with:
(A) to the extent certificated, certificates representing the Pledged Securities (as defined in the Security Agreement), if any, referred to therein accompanied by undated stock powers executed in blank,
(B) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Collateral Agent may deem necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(C) the Term A Loan Proceeds Account Control Agreement, the Operating Account Control Agreement and the Company Equity Contribution Account Control Agreement duly executed by the appropriate parties;
(iv) the Mortgages, duly executed and in a form suitable for recordation, along with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Collateral Agent may deem necessary in order to create a valid first Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid or shall be paid substantially concurrently with the Closing Date,
(B) for each Mortgaged Real Property, ALTA mortgagee’s title insurance policies (the “Title Policy”), including customary endorsements thereto in favor of Collateral Agent, in an amount reasonably acceptable to the Collateral Agent, dated as of the date of recording of such Mortgage, insuring the Mortgages to be valid subsisting first priority Liens on the property described therein, free and clear of all Liens, other than Permitted Encumbrances and other Liens reasonably acceptable to the Collateral Agent,
(C) for each Mortgaged Real Property either (I) a new and current ALTA survey (or equivalent) certified to the Collateral Agent sufficient for the issuers of the title insurance delivered pursuant to Section 4.01(a)(iv)(B) above to remove all standard survey exceptions and issue the customary survey-related endorsements, or (II) the most recent ALTA survey (or equivalent) of such premises, together with an affidavit from Borrower or such Restricted Subsidiary, as applicable, stating that there has been no change, in each case of clauses (I) and (II) such documentation being sufficient for the issuers of such title insurance policies to remove all standard survey exceptions and issue the customary survey-related endorsements,
(D) [reserved],
(E) opinions of counsel reasonably acceptable to the Collateral Agent, confirming that each Mortgage creates a Lien on the Mortgaged Real Property purported to be covered by the related Mortgage, which shall be from local counsel in each state where a Mortgaged Real Property is located covering the enforceability, due authorization, execution and delivery of the relevant Mortgages and any other opinions reasonably requested by Collateral Agent,
(F) with respect to each Mortgaged Real Property: (i) a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination; (ii) if any Mortgaged Real Property is located in a special flood hazard area, a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and the applicable Restricted Subsidiary, and (iii) for each Mortgaged Real Property located in a special flood hazard area, evidence of flood insurance as required by Section 6.03 hereof,
(G) with respect to any Leasehold Property that is Closing Date Mortgaged Real Property, an estoppel certificate from the landlord under the applicable lease, including but not limited to an estoppel certificate from Lessor under the MGM National Harbor Hotel and Casino Ground Lease reasonably satisfactory to the Administrative Agent, and
(H) evidence reasonably satisfactory to the Administrative Agent that a memorandum of lease to the MGM National Harbor Hotel and Casino Ground Lease has been recorded.
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of 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 Borrower is a partyDocuments;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(vvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that Borrower 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 Effect;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agentorganization;
(vii) a certificate favorable opinion of a Responsible Officer of Borrower either (Ax) attaching copies of all material consentsMilbank, licenses and approvals of third partiesTweed, if anyHxxxxx & MxXxxx LLP, required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of counsel to the Loan Documents Parties, (y) local counsel to the Loan Parties in each jurisdiction in which it is a partythe Loan Parties are formed and (z) Maryland local counsel to the Loan Parties with respect to Gaming Laws, in each case, addressed to the Administrative Agent, the Collateral Agent and such consents, licenses each Lender and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredreasonably satisfactory to the Administrative Agent;
(viii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2014 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 Loan Documents has been obtained accuracy of the representation and is warranty set forth in effectSection 5.14;
(ix) a certificate signed by a Responsible Officer Phase I environmental assessment reports in respect of Borrower attesting the Mortgaged Real Property reasonably acceptable to the Solvency of Borrower both before Administrative Agent (which reports the Administrative Agent has received and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Dateacknowledges being satisfied with);
(x) evidence that all insurance required to be maintained pursuant current FIRREA appraisals of the Mortgaged Real Property prepared by an independent appraiser reasonably satisfactory to the Loan Documents has been obtained Administrative Agent, at the sole expense of Borrower, reasonably acceptable to the Administrative Agent, showing the “as is” value, the “completed” value, the “completed and is in effectstabilized” value, and/or such other valuations as may be reasonably required by the Administrative Agent;
(xi) evidence that the Collateral Agent, on behalf of the Lenders, has been named as an additional insured or loss payee, as the case may be, under all Indebtedness insurance policies specified in Section 5.19 pursuant to certificates of insurance or endorsements, as appropriate;
(xii) a copy of the General Construction Agreement (which General Construction Agreement the Administrative Agent has received);
(xiii) a copy of the substantially final Plans and Specifications and a Project Budget, in each case reasonably satisfactory to the Joint Lead Arrangers (which Plans and Specifications the Administrative Agent has received);
(xiv) an In-Balance Test Certificate from the Chief Financial Officer of the Borrower, confirming that the In-Balance Test will be satisfied as of the Closing Date;
(xv) the unaudited consolidated balance sheets of the Borrower as of December 31, 2014 and September 30, 2015 (which consolidated balance sheets the Administrative Agent has received);
(xvi) certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all Liens effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Perfection Certificate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released8.03); and
(xiixvii) such other assurancesa Perfection Certificate (the “Perfection Certificate”), certificates, documents, consents or opinions as Agent or duly executed by each of the Required Lenders reasonably may requireLoan Parties.
(bi) Without duplication of amounts described in clause (c) below, any all fees required to be paid by the Borrower to the Administrative Agent and the Arrangers on or before the Closing Date pursuant to any written agreement shall have been concurrently be paid.
; and (cii) Unless waived by Agent, Borrower shall have all fees required to be paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, prior to Lenders by the Borrower on or on before the Closing Date, plus such additional amounts of such fees, charges and disbursements as Date pursuant to any written agreement shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to concurrently be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).paid;
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 precedentprecedent except as otherwise agreed between the Borrower and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or Guarantor, each dated the Closing Date (oras applicable, 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 signed on behalf of and each party to this AgreementGuaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) the Security Agreement and each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party or Guarantor, as applicable, thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) to the extent required under the Collateral and Guarantee Requirement, opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent; and
(C) evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party and each Guarantor 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 Borrower such Loan Party or such Guarantor is a party;
(iv) party or is to be a certificate of Borrower, dated party on the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-lawsDate;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formedan opinion from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, and that 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 New York counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to substantially in the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agentof Exhibit H;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedsince December 31, (B) that 2006, 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 Closing Date Material Adverse Effect; and ;
(Cvii) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) on the Closing Date after giving effect to the Transaction, from the Chief Financial Officer of the Borrower;
(viii) evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and that the Administrative Agent has been named as loss payee and additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ix) a certificate signed certified copies of the Merger Agreement, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower attesting to the Solvency that such documents are in full force and effect as of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the Loan Documents has been obtained and is in effectinitial Credit Extension;
(xi) evidence that all Indebtedness copies of a recent Lien and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Closing Date will be, paid in full, discharged, and releasedLoan Parties; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or a Lender Addendum executed and delivered by each Lender and accepted by the Required Lenders reasonably may requireBorrower.
(b) Without duplication of amounts described in clause (c) below, any All fees and expenses required to be paid hereunder and invoiced on or before the Closing Date shall have been paidpaid in full in cash.
(c) Unless waived by AgentPrior to or substantially simultaneously with the initial Credit Extension, (i) the Equity Contribution shall have been funded in full in cash; (ii) the Borrower shall have paid all reasonable fees, charges and disbursements received (whether directly as a result of counsel the Equity Contribution or as a result of an equity contribution by Holdings) cash proceeds from the Equity Contribution in an aggregate amount equal to Agent (directly to such counsel if requested by Agent) to at least 18% of the extent invoiced, prior to or aggregate pro forma capitalization of the Borrower on the Closing Date; and (iii) the Merger shall be consummated in accordance with the terms of the Merger Agreement (without giving effect to any amendments or waivers thereto that are materially adverse to the Lenders without the reasonable consent of the Agents) and in compliance with applicable material Laws.
(d) Prior to or substantially simultaneously with the initial Credit Extensions, plus the Borrower shall have received at least $575,000,000 in gross cash proceeds from the issuance of the High Yield Notes.
(e) Prior to or simultaneously with the initial Credit Extensions, the Borrower shall have terminated the Existing Credit Agreement and any other existing indebtedness of PFGI (other than Indebtedness set forth on Schedule 7.03(c), the Consent Solicitation shall have been effected and the supplemental indenture amending the indenture governing the Existing Notes contemplated thereby shall have been executed and delivered by the trustee thereunder and each other party thereto, and the Borrower shall have taken all other necessary actions such additional amounts that, after giving effect to the Transaction, (i) Holdings and its Subsidiaries shall have outstanding no Indebtedness or preferred Equity Interests other than (A) the Loans and L/C Obligations, (B) the High Yield Notes, (C) Indebtedness listed on Schedule 7.03(c) and (D) Existing Notes not tendered in connection with the Tender Offer and (ii) the Borrower shall have outstanding no Equity Interests (or securities convertible into or exchangeable for Equity Interests or rights or options to acquire Equity Interests) other than common stock owned by Holdings and preferred stock owned by Holdings, with terms and conditions reasonably acceptable to the Arrangers to the extent material to the interests of the Lenders.
(f) The Administrative Agent shall have received (i) the Audited Financial Statements and the audit report for such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings financial statements (provided that such estimate which shall not thereafter preclude a final settling be subject to any qualification) and (ii) unaudited consolidated balance sheets and related statements of accounts between Borrower income, stockholders’ equity and Agentcash flows of PFGI and its Subsidiaries for each subsequent fiscal quarter ended at least forty-five (45) days before the Closing Date (the “Unaudited Financial Statements”), which financial statements shall be prepared in accordance with GAAP.
(g) The Arrangers shall have received all documentation and other information reasonably requested in writing by them in order to allow the Arrangers and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to immaterial matters or items specified in clause (v) or (vi) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, an Amended and Restated Subsidiary Guaranty substantially in the form of Exhibit E from each of the Guarantors, the Amended and Restated Subordination Agreement signed on behalf substantially in the form of Exhibit G from each party of the Guarantors, an Amended and Restated Security Agreement substantially in the form of Exhibit I from each of the Loan Parties, the Amended and Restated Pledge Agreement and Irrevocable Proxy substantially in the form of Exhibit H from each Loan Party (other than COL), the Assignment of Secured Indebtedness executed by each of the parties thereto, and each Mortgage dated as of the date hereof and each of the Mortgage Assignments and Amendments and Subordinate Mortgage Amendments described in the Security Schedule, sufficient in number for distribution to this Agreementthe Administrative Agent, each Lender and the Borrower, and, in the case of the Security Documents, in form and in sufficient number of counterparts for the prompt completion of all recording and filing of the Security Documents as may be necessary or, in the opinion of the Administrative Agent, desirable to create or continue, as appropriate, a valid perfected first Lien against the collateral covered by such Security Documents, and together with stock certificates, membership interest certificates or such other certificated security as may be part of the collateral covered by the Security Documents and with stock powers or other transfer powers or instruments executed in blank for each such certificate, interest or security;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting Lender, each in a Noteprincipal amount equal to such Lender's Percentage Share of the Maximum Loan Amount;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated such evidence as the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as Administrative Agent may reasonably require to evidence verify that Borrower each Loan Party is duly organized or formed, and that Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownershipin which it is required to be qualified to engage in business, lease or operation including certified copies of properties or the conduct each Loan Party's Organization Documents, certificates of its good standing and/or qualification to engage in business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectand tax clearance certificates;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the 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 Initial Audited Financial Statements that which has had or could be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; ;
(vi) an opinion of counsel to each Loan Party substantially in the form of Exhibits F-1, F-2, F-3, F-4 and F-5;
(Cvii) all insurance required evidence satisfactory to be maintained the Administrative Agent that the Existing Credit Facility and the other "Loan Documents" defined therein have been or concurrently with the Closing Date are being assigned to the Lenders pursuant to the Loan Documents has been obtained Assignment of Secured Indebtedness and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before Mortgage Assignment and after giving effect to any BorrowingAmendment, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted securing obligations under Section 7.02 and Liens permitted under Section 7.01) the Existing Credit Facility have been, or concurrently with the Closing Date will beare being, paid assigned to the Administrative Agent;
(viii) a certificate of insurance of the Borrower and its Subsidiaries evidencing that the Borrower and its Subsidiaries are carrying insurance in fullaccordance with Section 6.7 and that such insurance is in full force and effect;
(ix) the Initial Engineering Report;
(x) the Initial Audited Financial Statements;
(xi) Evidence satisfactory to the Administrative Agent that, dischargedconcurrently with the effectiveness of this Agreement, the Borrower shall have issued the 2004 Senior Notes in accordance with the 2004 Senior Notes Indenture and releasedshall have received gross proceeds of at least $175,000,000 of such issuance (prior to any costs, expenses and discounts relate to the issuance thereof);
(xii) proper financing statements (form UCC-1), to be filed on or promptly after the date of the initial Borrowing, naming the Borrower as debtor and the Administrative Agent as secured party, describing all of the Collateral in which the Borrower has granted or purported to grant an interest, filed in the appropriate jurisdictions; proper financing statements (form UCC-1), to be filed on or promptly after the date of the initial Borrowing, naming one or more of the Guarantors as debtor(s) and the Administrative Agent as secured party, describing all of the Collateral in which the Guarantor or Guarantors have granted or purported to grant an interest, filed in the appropriate jurisdictions; together with copies of search reports in such jurisdictions as the Administrative Agent may reasonably request, listing all effective financing statements that name any of the Borrower or the Guarantors as debtor and any other documents or instruments as may be necessary or desirable (in the opinion of the Administrative Agent) to perfect the Administrative Agent's interest in the Collateral; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the Issuing Bank or the Required Majority Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date pursuant to any of the Loan Documents shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges costs and disbursements of counsel expenses payable to the Administrative Agent (directly pursuant to such counsel if requested by Agent) Section 10.4 to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges costs and disbursements expenses as shall constitute its the Administrative Agent's reasonable estimate of such fees, charges the costs and disbursements expenses described in Section 10.4 incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder on or after the Fourth Restatement Effective Date is subject to satisfaction of the following conditions precedentprecedent except as otherwise agreed between the Borrowers and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or a Guarantor, each dated the Closing Date (oras applicable, 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:its legal counsel (subject to Section 6.13(c)):
(i) executed counterparts of this Agreement signed on behalf of Agreement, the Security Agreement, and each party to this AgreementGuaranty;
(ii) a Note Notes executed by Borrower the Borrowers in favor of each Lender requesting a Notethat has requested Notes at least two Business Days in advance of the Fourth Restatement Effective Date;
(iii) the elements of the Collateral and Guarantee Requirement required to be satisfied on the Fourth Restatement Effective Date shall have been satisfied and each Collateral Document set forth on Schedule 1.01B required to be executed on the Fourth Restatement Effective Date as indicated on such schedule, duly executed by each Loan Party or a Guarantor (including the Ram Acquired Companies), as applicable, thereto, together with evidence that all other actions, searches, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; provided that to the extent any lien search, Collateral or insurance referred to in this clause (iii) (other than pledge and perfection of security interests in Equity Interests of Domestic Subsidiaries of the Borrowers and the Guarantors (to the extent required hereunder) and other assets with respect to which a Lien may be perfected by the filing of a financing agreement under the Uniform Commercial Code) is not provided on the Fourth Restatement Effective Date after the Borrowers’ use of commercially reasonable efforts to do so, the delivery of such lien search, Collateral or insurance referred to in clause (iii) above shall not constitute a condition precedent to the availability of the Revolving Loans on the Fourth Restatement Effective Date but shall be required to be delivered after the Fourth Restatement Effective Date pursuant to Section 6.13(c) (it being understood that, due to the eligibility requirements set forth in the definitions of “Eligible Accounts”, “Eligible Inventory”, “Eligible In-Transit Inventory”, “Eligible Real Property” and “Eligible Rolling Stock”, Excess Availability may be adversely affected if the above mentioned conditions are not satisfied);
(iv) (A) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party and each Guarantor (including the Ram Acquired Companies) 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 Borrower such Loan Party or such Guarantor is a partyparty or is to be a party on the Fourth Restatement Effective Date, and (B) a good standing certificate from the applicable Governmental Authority of each Loan Party’s and each Guarantor’s jurisdiction of incorporation, organization or formation, each dated a recent date prior to the Fourth Restatement Effective Date;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as an opinion from Xxxxxx Xxxxxxx Xxxxx LLP, New York counsel to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan DocumentsParties, and (B) identify by name and title and bear the signatures opinions of each officer authorized local counsel to sign the Loan DocumentsParties, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formed, and that Borrower is validly existingwhich opinions, in good standing and qualified to engage in business in each jurisdiction where its ownershipcase, lease or operation of properties or the conduct of its business requires such qualification, except shall be reasonably acceptable to the extent that failure Administrative Agent with regard to do so could not such matters of law as the Administrative Agent shall reasonably be expected to have a Material Adverse Effectrequest;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedsince June 29, (B) that 2019, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(vii) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Fourth Restatement Effective Date after giving effect to the Transactions, from the Treasurer of Holdings;
(viii) [reserved]; and and
(Cix) subject to clause (iii) above, evidence that all insurance (other than title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and that the Administrative Agent has been named as loss payee and additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ixb) a certificate signed All fees and expenses required to be paid hereunder, under the Fee Letter and invoiced on or before the Fourth Restatement Effective Date shall have been paid in full in cash or will be paid on the Fourth Restatement Effective Date.
(c) The Administrative Agent shall have received (i) unaudited consolidated balance sheets and related statements of income and cash flows of Holdings and its Subsidiaries and, if different, of Holdings and its Restricted Subsidiaries for the most recently ended fiscal quarter ending at least 45 days before the Fourth Restatement Effective Date, (ii) quarterly projected consolidated balance sheets of Holdings and its Subsidiaries (prepared by a Responsible Officer of Borrower attesting giving Pro Forma Effect to the Solvency Transactions) as of Borrower both each fiscal quarter end through the end of the fiscal year 2019, and the related consolidated statements of projected cash flow and projected income and a summary of the material underlying assumptions applicable thereto, and (iii) annual projected consolidated balance sheets of Holdings and its Subsidiaries (prepared by giving Pro Forma Effect to the Transactions) as of each fiscal year end for each of fiscal years 2020 through and including 2024, and the related consolidated statements of projected cash flow and projected income and a summary of the material underlying assumptions applicable thereto (and such projections shall not be inconsistent with information provided to Xxxxx Fargo before the Fourth Restatement Effective Date).
(d) The Ram Acquisition shall have been consummated or shall be consummated substantially concurrently with the Borrowings of initial Revolving Loans and after giving effect to any Borrowing, or the issuance of any Letters of CreditLOTL Loans hereunder, in each case, in accordance with the terms of the Ram Acquisition Agreement.
(e) The Administrative Agent shall have received evidence reasonably satisfactory to it that, substantially concurrently with the Borrowings of initial Revolving Loans and the LOTL Loans hereunder, the 2027 Escrow Conditions shall have been satisfied, the 2027 Escrow Merger shall have been consummated, and the Lead Borrower will have access to all or substantially all of the then-remaining proceeds of the 2027 Senior Notes formerly held by PFG Escrow Corporation (in its former capacity as 2027 Senior Notes Issuer).
(f) [Reserved].
(g) The Administrative Agent shall have received a Beneficial Ownership Certificate (giving effect to the Ram Acquisition) and all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that has been requested reasonably in advance of the Fourth Restatement Effective Date.
(h) The Administrative Agent shall have received confirmation from each of the Administrative Agent, the Collateral Agent, and each Lender that (i) such Person’s due diligence with respect to flood insurance requirements for all Mortgaged Properties (including any Ram Real Estate which is intended to be Eligible Real Property on the Closing Date;
date of the Borrowings of the initial Revolving Loans and the LOTL Loans hereunder) has been completed, (xii) the results of such due diligence are satisfactory to such Person, and (iii) such Person has received all evidence that all of compliance with flood insurance required to be maintained pursuant to requirements set forth in the Loan Documents has been obtained and is in effect;
(xi) found such evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may requiresatisfactory.
(b) Without duplication of amounts described in clause (c) below, any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to immaterial matters or items specified in clause (iv) or (v) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower to the extent the Borrower's signature is required thereon, each dated the 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 signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note Revolving Loan Notes executed by the Borrower in favor of each Lender requesting such a Note, each in a principal amount equal to such Lender's Commitment as of the Closing Date;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender (if the Swing Line Lender requests such a Note) in the principal amount of the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications evidence as the Administrative Agent may reasonably require to evidence verify that the Borrower is duly organized or formed, and that Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownershipin which it is required to be qualified to engage in business, lease or operation including certified copies of properties or the conduct Borrower's Organization Documents, certificates of its good standing and/or qualification to engage in business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectand tax clearance certificates;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that which 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 the current Debt Ratings;
(vii) an opinion of Xxxxxxx & Xxxxx, L.L.P., counsel to the Loan Documents has been obtained and is Borrower, substantially in effectthe form of Exhibit H-1;
(viii) an opinion of Xxxxxxxx X. Xxxxxxx, General Counsel of the Borrower, substantially in the form of Exhibit H-2;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents 364-Day Credit Agreement has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; andis being executed by the parties thereto;
(xiix) such other assurancescertificates or documents as the Administrative Agent, certificatesthe L/C Issuer, documents, consents or opinions as Agent the Swing Line Lender or the Required Majority Lenders may reasonably may require.request;
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.; and
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced at least three 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 Borrower and Agent).
Appears in 1 contract
Samples: Credit Agreement (Bj Services Co)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The IPO by Parent shall have been consummated with gross cash proceeds therefrom, in a minimum amount of $350,000,000 on terms substantially consistent with Amendment Number 2 of the Form S-1, including any further amendments thereto (the “BKFS S-1”), and the Administrative Agent shall have received satisfactory evidence thereof, including a copy of the effective Form S-1 Registration Statement. The Administrative Agent shall be reasonably satisfied that the Equity Purchase shall be consummated substantially in accordance with the terms described in the BKFS S-1 and any other agreements and other documents relating to the Equity Purchase and applicable Law and regulatory approvals. The Refinancing shall have been consummated and the Administrative Agent shall have received satisfactory evidence thereof.
(b) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to Agent and each of the LendersAdministrative Agent:
(i) executed counterparts of this Agreement signed on behalf of each party to this Agreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a NoteNote to the extent such Lender requests such Note at least two Business Days prior to the Closing Date;
(iii) a certificate dated the Closing Date and executed by a Responsible Officer of each of the Loan Parties, certifying (A)(x) that attached thereto is a true and complete copy of the articles or certificate of incorporation or other comparable organizational documents of such certificates Loan Party, certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and complete copy of the bylaws, operating or comparable governing document of such Loan Party 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 actionrelevant governing body, incumbency certificates and/or other certificates as the case may be, authorizing the execution, delivery and performance of Responsible Officers of Borrower as 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 Borrower it is a party;, and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect without amendment, modification or rescission, and (y) 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 Borrowera 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;
(v) an opinion of Weil, Gotshal & Xxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender and in form and substance reasonably satisfactory to the Administrative Agent;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying as to the satisfaction of the conditions set forth in Section 4.02(a) and Section 4.02(b);
(vii) a Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension;
(viii) a certificate from the chief financial officer of Holdings attesting to the Solvency of Holdings, the Borrower and the Restricted Subsidiaries on a consolidated basis after giving effect to the Transactions;
(ix) executed counterparts of the Security Agreement together with the following:
(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 Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and Parties;
(C) contain appropriate attachmentsthe Intellectual Property Security Agreement, including duly executed by each Loan Party required to execute such Intellectual Property Security Agreement pursuant to the certificate Security Agreement, in proper form for filing with the United States Patent and Trademark Office or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-lawsUnited States Copyright Office, as applicable;
(vc) such documents all fees and certifications as Agent 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 (including fees pursuant to the Fee Letter) shall have been paid in full in cash (which amounts may reasonably require to evidence that Borrower is duly organized or formedbe offset against the loan proceeds funded on the Closing Date) (and in the case of expenses, and that 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 invoiced at least three Business Days prior to the Closing Date).
(d) [Reserved.]
(e) Since December 31, 2014, there has been no change, occurrence or development that failure to do so could not has had or would reasonably be expected to have a Material Adverse Effect;Effect of the type described in clause (a) of the definition thereof.
(vif) a favorable opinion No later than two Business Days in advance of counsel to the Loan Parties acceptable to Closing Date, the Administrative Agent addressed to shall have received all documentation and other information reasonably requested by the Administrative Agent (on behalf of any Lender) in writing at least 10 Business Days in advance of the Closing Date, which documentation or other information is required by regulatory authorities under applicable “know your customer” and each Lenderanti-money laundering rules and regulations, as to including the matters USA PATRIOT Act.
(g) The Lead Arrangers shall have received the Specified Financial Statements (it being understood and agreed that Parent’s public filing of any such financial statements set forth concerning Borrower in clauses (a), (b) and (c) of the definition thereof with the SEC shall satisfy the requirements of this clause (g) with respect thereto).
(h) The Administrative Agent shall have received the results of a recent UCC lien search with respect to each Loan Party.
(i) Each document (including any UCC (or similar) financing statement) required by the Collateral Documents in order to create in favor of the Administrative Agent, for the benefit of itself and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) other Secured Parties, a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection perfected Lien on the Collateral described therein with the executionpriority required therein, delivery and performance by Borrower and the validity against Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effectproper form for filing, registration or (B) stating that no such consents, licenses or approvals are so required;recordation.
(viiij) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) The Administrative Agent shall have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could 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 Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) received evidence that all insurance required to be maintained pursuant to the Loan Documents Section 6.07 has been obtained and is in effect;
(xi) evidence effect and that all Indebtedness and all Liens (other than Indebtedness permitted the Administrative Agent has been named as loss payee and/or additional insured, as applicable, under Section 7.02 and Liens permitted under Section 7.01) each insurance policy with respect to such insurance as to which the Administrative Agent shall have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any fees required requested to be paid on or before the Closing Date shall have been paidso named.
(c) Unless waived by Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Fidelity National Financial, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Agent’s Lender's receipt of the following, each of which shall be originals or telecopies electronic transmissions (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 Agent and each of the LendersLender:
(i) executed counterparts of this Agreement signed on behalf of each party to this Agreement;
(ii) a Note and the Guaranty and any Notes executed by Borrower in favor of Lender;
(ii) the Security Agreement duly executed by Borrower and each Guarantor, together with evidence satisfactory to Lender requesting a Noteof perfection of its security interests thereunder in accordance with the requirements of the Security Agreement;
(iii) evidence of insurance required by this Agreement and the Collateral Documents and otherwise acceptable to Lender;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as Agent Lender 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 Borrower such Loan Party is a party or is to be a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrowerincluding, which shall without limitation, (A) certify original certified articles of incorporation of other charter documents, as to applicable, (B) copies of resolutions of its the board of directors, authorizing the execution, delivery directors or comparable managing body approving and performance of adopting the Loan Documents, (B) identify by name the transactions contemplated hereby, and title authorizing execution and bear the signatures of each officer authorized to sign the Loan Documentsdelivery thereof, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority a copy of the jurisdiction bylaws or comparable operating agreement of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formed, and that 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 counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and releasedParty; and
(xiiv) such other assurances, certificates, documents, or consents or opinions as Agent or the Required Lenders Lender reasonably may require.
(b) Without duplication Lender shall have completed to its satisfaction its due diligence review of amounts described in clause the Loan Parties and the Collateral.
(c) below, any All fees required to be paid to Lender on or before the Closing Date shall have been paid.
(cd) Unless waived by AgentLender, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent Lender (directly to such counsel if requested by AgentLender) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and AgentLender).
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) : The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, 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 Lenders:
(i) : executed counterparts of this Agreement signed on behalf of each party to this Agreement;
(ii) ; a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) ; 47354535_7 such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of 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 Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) ; such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower 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;
(viit is organized; written opinion(s) a favorable opinion of counsel to the Loan Parties acceptable to Agent Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 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 Effectcurrent Ratings; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has Existing Credit Agreement and the DP&L Bank of America Credit Facility have been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, are being terminated and the obligations thereunder have been paid in full, discharged, full and any Liens securing obligations under the Existing Credit Agreement or the DP&L Bank of America Credit Facility have been or concurrently with the Closing Date are being released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or and evidence that the Required Lenders reasonably may require.
(b) Without duplication conditions precedent to the effectiveness of amounts described in clause (c) below, any the DP&L Fifth Third Bank Credit Facility and the PNC Bank Credit Facility have been satisfied and all documentation thereof and required thereunder has been executed. Any fees required to be paid on or before the Closing Date shall have been paid.
paid to the extent invoiced at least two (c2) Business Days prior to the Closing Date. Unless waived by Agentthe Arrangers, and subject to the provisions of the Fee Letter and the Commitment Letter, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel due to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced at least two (2) Business Days prior to or on the Closing DateDate and required to be paid pursuant to the Fee Letters or the Commitment Letters. Without limiting the generality of the provisions of the last paragraph of Section 9.03, plus such additional amounts for purposes of such feesdetermining compliance with the conditions specified in this Section 4.01, charges and disbursements as each Lender that has signed this Agreement shall constitute its reasonable estimate of such feesbe deemed to have consented to, charges and disbursements incurred approved or accepted or to be incurred satisfied with, each document or other matter required thereunder to be consented to or approved by it through or acceptable or satisfactory to a Lender unless the closing proceedings (provided that Administrative Agent shall have received notice from such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent)Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (DPL Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is on the Closing Date was subject to satisfaction of the following conditions precedentprecedent except as otherwise agreed between the Borrower and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or Guarantor, each dated the Closing Date (oras applicable, 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 signed on behalf of and each party to this AgreementGuaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) the Security Agreement and each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party or Guarantor, as applicable, thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) to the extent required under the Collateral and Guarantee Requirement, opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent; and
(C) evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party and each Guarantor 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 Borrower such Loan Party or such Guarantor is a party;
(iv) party or is to be a certificate of Borrower, dated party on the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-lawsDate;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formedan opinion from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, and that 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 New York counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to substantially in the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agentof Exhibit H;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedsince December 31, (B) that 2006, 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 Closing Date Material Adverse Effect; and ;
(Cvii) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) on the Closing Date after giving effect to the Transaction, from the Chief Financial Officer of the Borrower;
(viii) evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and that the Administrative Agent has been named as loss payee and additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ix) a certificate signed certified copies of the Merger Agreement, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower attesting to the Solvency that such documents are in full force and effect as of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the Loan Documents has been obtained and is in effectinitial Credit Extension;
(xi) evidence that all Indebtedness copies of a recent Lien and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Closing Date will be, paid in full, discharged, and releasedLoan Parties; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or a Lender Addendum executed and delivered by each Lender and accepted by the Required Lenders reasonably may requireBorrower.
(b) Without duplication of amounts described in clause (c) below, any All fees and expenses required to be paid hereunder and invoiced on or before the Closing Date shall have been paidpaid in full in cash.
(c) Unless waived by AgentPrior to or substantially simultaneously with the initial Credit Extension, (i) the Equity Contribution shall have been funded in full in cash; (ii) the Borrower shall have paid all reasonable fees, charges and disbursements received (whether directly as a result of counsel the Equity Contribution or as a result of an equity contribution by Holdings) cash proceeds from the Equity Contribution in an aggregate amount equal to Agent (directly to such counsel if requested by Agent) to at least 18% of the extent invoiced, prior to or aggregate pro forma capitalization of the Borrower on the Closing Date; and (iii) the Merger shall be consummated in accordance with the terms of the Merger Agreement (without giving effect to any amendments or waivers thereto that are materially adverse to the Lenders without the reasonable consent of the Agents) and in compliance with applicable material Laws.
(d) Prior to or substantially simultaneously with the initial Credit Extensions, plus the Borrower shall have received at least $575,000,000 in gross cash proceeds from the issuance of the High Yield Notes.
(e) Prior to or simultaneously with the initial Credit Extensions, the Borrower shall have terminated the Existing Credit Agreement and any other existing indebtedness of PFGI (other than Indebtedness set forth on Schedule 7.03(c)), the Consent Solicitation shall have been effected and the supplemental indenture amending the indenture governing the Existing Notes contemplated thereby shall have been executed and delivered by the trustee thereunder and each other party thereto, and the Borrower shall have taken all other necessary actions such additional amounts that, after giving effect to the Transaction, (i) Holdings and its Subsidiaries shall have outstanding no Indebtedness or preferred Equity Interests other than (A) the Loans and L/C Obligations, (B) the High Yield Notes, (C) Indebtedness listed on Schedule 7.03(c) and (D) Existing Notes not tendered in connection with the Tender Offer and (ii) the Borrower shall have outstanding no Equity Interests (or securities convertible into or exchangeable for Equity Interests or rights or options to acquire Equity Interests) other than common stock owned by Holdings and preferred stock owned by Holdings, with terms and conditions reasonably acceptable to the Initial Arrangers to the extent material to the interests of the Lenders.
(f) The Administrative Agent shall have received (i) the Audited Financial Statements and the audit report for such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings financial statements (provided that such estimate which shall not thereafter preclude a final settling be subject to any qualification) and (ii) unaudited consolidated balance sheets and related statements of accounts between Borrower income, stockholders’ equity and Agentcash flows of PFGI and its Subsidiaries for each subsequent fiscal quarter ended at least forty-five (45) days before the Closing Date (the “Unaudited Financial Statements”), which financial statements shall be prepared in accordance with GAAP.
(g) The Initial Arrangers shall have received all documentation and other information reasonably requested in writing by them in order to allow the Initial Arrangers and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
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 precedentprecedent except as otherwise agreed between the Borrower and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf of each party to this Agreementand the Guaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least five (5) Business Days in advance of the Closing Date;
(iii) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, together with (except as provided in such Collateral Documents);
(A) certificates, if any, representing the pledged equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the pledged debt referred to therein endorsed in blank;
(B) to the extent required under the Collateral and Guarantee Requirement, opinions of local counsel for the Loan Parties in the jurisdictions in which the Mortgaged Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent and Collateral Agent; and
(C) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and Collateral Agent;
(iv) such certificates (including a certificate substantially in the form of Exhibit J) of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) party or is to be a certificate of Borrower, dated party on the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-lawsDate;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formedan opinion from Xxxxxxxx & Xxxxx LLP, and that Borrower is validly existingNew York, 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 counsel to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectLoan Parties, substantially in the form of Exhibit H;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Borrower certifying that (A) that the conditions specified in Sections 4.02(a) since September 30, 2010 no Closing Date Activant Material Adverse Effect has occurred and (b) have been satisfied, (B) that there has been since December 31, 2010 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 Closing Date Epicor Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents Effect has been obtained and is in effectoccurred;
(ixvii) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of the Borrower both before and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to any Borrowingthe Transaction, or from the issuance Chief Financial Officer of any Letters of Credit, in each case, on the Closing DateBorrower;
(xviii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and that the Administrative Agent and Collateral Agent has been named as loss payee and additional insured under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ix) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension;
(x) copies of a recent Lien, bankruptcy, judgment, copyright, patent and trademark search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties; and
(xi) evidence that all Indebtedness good standing certificates or certificates of status, as applicable and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have beenbring down telegrams or facsimiles, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may requirefor each Loan Party.
(b) Without duplication of amounts described in clause (c) below, any All fees and expenses required to be paid on hereunder or before pursuant to the Fee Letter, to the extent invoiced at least three (3) Business Days prior to the Closing Date shall have been paidpaid in full in cash or will be paid on the Closing Date out of the initial Credit Extension.
(c) Unless waived by AgentPrior to or simultaneously with the initial Credit Extension, Borrower (i) the Equity Contribution shall have paid been consummated, (ii) the Activant Acquisition shall be consummated in all reasonable feesmaterial respects in accordance with the terms of the Activant Merger Agreement, charges without giving effect to any modifications, amendments, consents or waivers of the Activant Merger Agreement that are material and disbursements of counsel to Agent (directly to such counsel if requested by Agent) adverse to the Lenders or the Lead Arrangers as reasonably determined by the Lead Arrangers, without the prior consent of the Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) and (iii) the Epicor Acquisition shall be consummated in all material respects in accordance with the terms of the Epicor Merger Agreement, without giving effect to any modifications, amendments, consents or waivers of the Epicor Merger Agreement that are material and adverse to the Lenders or the Lead Arrangers as reasonably determined by the Lead Arrangers, without the prior consent of the Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned).
(d) To the extent invoicedEquity Interests other than common Equity Interests were issued in connection with the Equity Contribution, such issuance shall be on terms and conditions, and pursuant to documentation, reasonably satisfactory to the Lead Arrangers.
(e) The Lead Arrangers shall have received (i) the Audited Financial Statements, (ii) the Unaudited Financial Statements and (iii) the Pro Forma Financial Statements.
(f) The Refinancing shall have been consummated, except that the following Existing Indebtedness shall be permitted to remain outstanding after giving effect to the Transaction: (a) the Indebtedness created under the Loan Documents and the Senior Unsecured Notes, (b) the Epicor Notes that do not tender for redemption on or prior to or on the Closing Date, plus (c) the Activant Notes that remain outstanding but have been discharged pursuant to the applicable provisions of the Activant Indenture and (d) other Indebtedness specified on Schedule 7.03(c) hereto.
(g) The Activant Specified Merger Agreement Representations and the Epicor Specified Merger Agreement Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, to the extent that such additional amounts representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such fees, charges earlier date; provided further that any representation and disbursements warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall constitute its reasonable estimate of be true and correct (after giving effect to any qualification therein) in all respects on such fees, charges respective dates.
(h) The Administrative Agent and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate Lead Arrangers shall not thereafter preclude a final settling of accounts between have received all documentation and other information about the Borrower and Agent)the Guarantors as has been reasonably requested in writing at least five days prior to the Closing Date by the Administrative Agent and the Lead Arrangers that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
Appears in 1 contract
Samples: Credit Agreement (Epicor International Holdings, Inc.)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of and the Guaranty, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Revolving Note executed by the Borrower in favor of each Lender requesting a Revolving Note;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender;
(a) the Pledge Agreement, duly executed by the Borrower and each Subsidiary of the Borrower that has a Subsidiary, granting to the Administrative Agent for the benefit of the Lenders, a first priority security interest in all of the issued and outstanding Equity Interests in any Domestic Subsidiary; and the Borrower and each Subsidiary shall have delivered to the Administrative Agent all certificates, if any, evidencing such Equity Interests, all UCC-1s and all powers, duly endorsed in blank, with respect thereto; the Borrower and each Subsidiary shall have taken all actions as may be required by the Administrative Agent to effect the grant and first priority perfection of the Administrative Agent's security interest in such Equity Interests and (b) a pledge agreement in form and substance satisfactory to the Administrative Agent, granting to the Administrative Agent for the benefit of the Lenders, a first priority security interest in 66% of the issued and outstanding Equity Interests of (1) Xxxxx Ops (U.K.) Limited, (2) Energy Resource Technology (U.K.) Limited and (2) Cal Dive HR Services Limited; and the Borrower shall have delivered to the Administrative Agent all certificates, if any, evidencing such Equity Interests and all powers, duly endorsed in blank, with respect thereto; and the Borrower shall have taken all actions as may be required by the Administrative Agent to effect the grant and first priority perfection of the Administrative Agent's security interest in such Equity Interests;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(vvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that Borrower 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;
(vivii) a favorable opinion of Xxxxxx Xxxxxx, counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the matters set forth concerning Borrower Loan Parties and the Loan Documents in form and substance as the Required Lenders may reasonably satisfactory to Agentrequest;
(viiviii) a certificate of a Responsible Officer of Borrower each Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiiix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and .
(Cx) all insurance required to be maintained pursuant to evidence that the Loan Documents Existing Credit Agreement has been obtained or concurrently with the Closing Date is being terminated and is in effectall Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(ixxi) a certificate duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date, signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and releasedBorrower; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the Swing Line Lender, the L/C Issuer, or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before August 30, 2004.
(e) There shall not have occurred a material adverse change (i) in the business, assets, properties, liabilities (actual or contingent), operations, conditions (financial or otherwise) or prospects of the Borrower and its Subsidiaries, taken as a whole, since December 31, 2003 or (ii) in the facts and information regarding such entities as represented by the Borrower or any of its Subsidiaries, or any representatives of any of them, to date.
(f) The absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Borrower or any of its Subsidiaries, threatened, in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Agent’s Unless waived by all the Lenders (or by the Administrative Agent with respect to immaterial matters or items specified in clause (v) or (vi) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the receipt of the followingfollowing by the Administrative Agent or, as appropriate, the Security Trustee, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent or, where relevant, the Security Trustee, and each of the Lenderstheir respective legal counsel:
(i) executed counterparts of this Agreement signed on behalf of and the Guaranty Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note Committed Loan Notes executed by the Borrower in favor of each Lender requesting such a Note, each in a principal amount equal to such Lender's Commitment;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender (if it requests such a Note) in the principal amount of the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent or the Security Trustee may reasonably require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications evidence as the Administrative Agent or the Security Trustee may reasonably require to evidence verify that Borrower each Loan Party is duly organized or formed, and that Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownershipin which it is required to be qualified to engage in business, lease or operation including certified copies of properties or the conduct each Loan Party's Organization Documents, certificates of its good standing and/or qualification to engage in business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectand tax clearance certificates;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 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 which has had or could be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ixvii) a certificate signed by a Responsible Officer an opinion of Borrower attesting counsel to each Loan Party substantially in the Solvency form of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing DateExhibit J;
(xviii) evidence that all insurance required to be maintained pursuant to the Loan Documents Existing Credit Agreement has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released; and
(xiiix) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the Security Trustee, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Without duplication Unless waived by all the Lenders, the receipt of amounts described the Collateral Documents by the Administrative Agent or, as appropriate, the Security Trustee, 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 and each in clause form and substance satisfactory to the Administrative Agent or, where relevant, the Security Trustee, and their respective legal counsel, together with:
(i) acknowledgment copies of all Uniform Commercial Code financing statements filed, registered or recorded to perfect the security interests of the Administrative Agent for the benefit of the Lenders, or other evidence satisfactory to the Administrative Agent or, as appropriate, the Security Trustee, that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Administrative Agent or the Security Trustee for the benefit of the Lenders in accordance with applicable law;
(ii) written advice relating to such Lien and judgment searches as the Administrative Agent or the Security Trustee shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons;
(iii) all certificates and instruments representing the Collateral, stock transfer powers executed in blank with signatures guaranteed as the Administrative Agent, the Security Trustee or the Lenders may specify and, if relevant, a completed Federal Reserve Form U-1 for each Lender;
(iv) evidence that the Collateral Account contains a Deposit Account maintained at Bank of America with a principal balance on the Closing Date of not less than the sum of (A) aggregate undrawn amount of all outstanding Existing Letters of Credit plus (B) the aggregate of all Unreimbursed Amounts with respect to any Existing Letters of Credit, including all outstanding L/C Borrowings with respect to any Existing Letters of Credit;
(v) evidence that all other actions necessary or, in the opinion of the Administrative Agent, the Security Trustee or the Lenders, desirable to perfect and protect the first priority security interest created by the Collateral Documents have been taken;
(vi) funds sufficient to pay any filing or recording tax or registration or other fees including, but not limited to, any and all Uniform Commercial Code financing statements;
(vii) evidence that all other actions necessary or, in the opinion of the Administrative Agent, the Security Trustee or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the ability of the Administrative Agent or the Security Trustee, as the case may be, to preserve and protect its interests in and access to the Collateral, have been taken;
(c) below, any Standard lenders' payable endorsements with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower in accordance with Section 6.07;
(d) Any fees required to be paid on or before the Closing Date shall have been paid.
(ce) Unless waived by Agentthe Administrative Agent or the Security Trustee, the Borrower shall have paid all reasonable fees, charges Attorney Costs of the Administrative Agent and disbursements of counsel to Agent (directly to such counsel if requested by Agent) the Security Trustee to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and Agentthe Administrative Agent or the Security Trustee).
(f) The Closing Date shall have occurred on or prior to July 24, 2002.
Appears in 1 contract
Samples: Credit Agreement (Getty Images Inc)
Conditions of Initial Credit Extension. The obligation of the L/C LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Agent’s receipt The Administrative Agent shall have received all of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the LendersAdministrative Agent:
(i) executed counterparts of this Agreement signed on behalf executed by the Borrower and each Lender, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower and a Guaranty executed by each Guarantor required to execute and deliver such Guaranty pursuant to Section 6.11 of each party to this Agreement, sufficient in number for distribution to the Administrative Agent, the Borrower and their respective counsel;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Restricted Person 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 Borrower such Restricted Person is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Restricted Person is duly organized or formed, and that each 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 Winston & Xxxxxx LLP, counsel to the Loan Parties acceptable Restricted Persons, substantially in the form of Exhibit F, and a favorable opinion of Xxxxxx & Xxxxxx L.L.P., local counsel to Agent the Restricted Persons for the State of Texas, in form and substance satisfactory to Administrative Agent, each addressed to the Administrative Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(viivi) a certificate of a Responsible Officer of Borrower each Restricted Person either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower such Restricted Person and the validity against Borrower such Restricted Person of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Initial Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ixviii) a certificate duly completed Compliance Certificate as of the last day of the Fiscal Quarter of the Borrower most recently ended prior to the Closing Date for which financial statements are available to the Borrower, signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing DateBorrower;
(xix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xix) evidence satisfactory to it that (A) all Indebtedness and all Liens Loans (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01as defined in the Existing Credit Agreement) of the Lenders (as defined in the Existing Credit Agreement) shall have been, been or shall concurrently with the Closing Date will be, paid be repaid in full, dischargedtogether with any accrued interest thereon and any accrued fees payable to such Lenders under the Existing Credit Agreement to the Closing Date, (B) the commitments under the Existing Credit Agreement of such Lenders shall have been or shall concurrently be terminated and (C) all Liens securing obligations (including Hedging Contracts) in connection with the Existing Credit Agreement are being concurrently released;
(xi) the Initial Financial Statements; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the LC Issuer or the Required Majority Lenders reasonably may require.
(b) Without duplication The Borrower shall have a Rating from at least one Rating Agency of amounts described in clause BBB- or better.
(c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(cd) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has executed and delivered this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent the Structuring Advisor and each of the Required Lenders:
(i) executed counterparts of this Agreement signed on behalf of each party to this Agreement;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) the Pledge Agreement, executed by Parent, together with all original certificates representing Equity Interests referred to therein, if any, accompanied by undated stock powers executed in blank;
(iv) any and all original certificates representing Pledged Equity Collateral (together with duly executed undated stock powers);
(v) financing statements in form appropriate (but, in any event, reasonably acceptable to the Structuring Advisor) for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent (acting at the direction of the Required Lenders) deems necessary or desirable in order to perfect the Liens created pursuant to the DIP Order and/or hereunder;
(vi) completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (v) above that name any Loan Party as debtor, together with copies of such other financing statements,
(vii) evidence of the completion of all other actions, recordings and filings that the Structuring Advisor deems necessary or desirable in order to perfect the Liens created thereby;
(viii) the Collateral Assignment of Communication Paths duly executed by the appropriate Loan Parties;
(ix) the Collateral Assignment of Contract Rights duly executed by the appropriate Loan Parties;
(A) resolutions of the board of directors or other governing body of each Loan Party authorizing the entry of such Loan Party into the Loan Documents and (B) certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Agent may reasonably require each 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 Loan Documents to which Borrower such Loan Party is a party or is to be a party, in each case reasonably acceptable to the Administrative Agent (acting at the direction of the Required Lenders);
(ivxi) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that Borrower 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 the conduct of its business requires such qualification, except organization reasonably acceptable to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectAdministrative Agent (acting at the direction of the Required Lenders);
(vixii) a favorable opinion of counsel Xxxxxx & Xxxxxxx, LLP, and Bilzin Xxxxxxx LLP counsels to the Parent and the Loan Parties acceptable to Agent Parties, addressed to Agent the Administrative Agent, Structuring Advisor and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory acceptable to Agentthe Structuring Advisor and covering such matters concerning the Parent, the Loan Parties and the Loan Documents as the Structuring Advisor may reasonably request;
(viixiii) [reserved];
(xiv) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedmet, and (B) that there has been since May 20, 2019, no event change, occurrence or circumstance since development shall have occurred or become known to the date of the Audited Financial Statements Loan Parties that has had or could reasonably be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; Effect other than the filing of the Cases and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effectevents that typically result from the filing of a case under Chapter 11 of the Bankruptcy Code;
(ixxv) a certificate signed by a Responsible Officer Borrowing Base Certificate prepared as of Borrower attesting the Closing Date with respect to the Solvency month ending June 30, 2019;
(xvi) the Administrative Agent, the Structuring Advisor and each Lender shall have received all necessary Patriot Act compliance information, the result of Borrower both before which are reasonably satisfactory to the Structuring Advisor, the Administrative Agent, the Structuring Advisor and after giving effect to any Borrowing, or the issuance of any Letters of CreditLenders in their sole discretion, in each casecase requested by the Structuring Advisor, on the Administrative Agent or such Lender in writing at least five Business Days prior to the Closing Date;
(xxvii) evidence that all certificates of insurance required to indicating the Loan Parties’ compliance with the Loan Documents, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or lenders loss payee, the form and substance of which shall be maintained pursuant satisfactory to the Loan Documents has been obtained Administrative Agent and is in effectthe Structuring Advisor;
(xixviii) evidence that all Indebtedness and all Liens [reserved];
(other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01xix) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released[reserved]; and
(xiixx) such other assurances, certificates, documents, consents or opinions as Agent or evidence that the Required Lenders reasonably may requirePre-Petition Letters of Credit shall be Cash Collateralized with proceeds of a borrowing hereunder on the Closing Date.
(b) Without duplication of amounts described in clause (c) below, any fees required to be paid on or before the Closing Date The Administrative Agent shall have been paid.
(c) Unless waived by Agenta valid first priority perfected Lien on the Collateral, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) subject only to the extent invoiced, prior to or on Carve-Out and the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent)Pre-Petition Priority Liens.
Appears in 1 contract
Samples: Secured Superpriority Debtor in Possession Credit Agreement (Monitronics International Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to immaterial matters or items specified in clause (v) or (vi) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed and, if there are Material Subsidiaries on behalf of the Closing Date, the Guaranty, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note Committed Loan Notes executed by the Borrower in favor of each Lender requesting such a Note, each in a principal amount equal to such Lender's Commitment;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender (if it requests such a Note) in the principal amount of the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications evidence as the Administrative Agent may reasonably require to evidence verify that Borrower each Loan Party is duly organized or formed, and that Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownershipin which it is required to be qualified to engage in business, lease or operation including certified copies of properties or the conduct each Loan Party's Organization Documents, certificates of its good standing and/or qualification to engage in business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectand tax clearance certificates;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 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 which has had or could be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ixvii) a certificate signed by a Responsible Officer an opinion of Borrower attesting counsel to each Loan Party in form and substance satisfactory to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;Administrative Agent; and
(xviii) evidence that all insurance required to be maintained pursuant to Loans, interest, fees and other accrued amounts under the Loan Documents has Existing Credit Agreement have been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, are paid in full, discharged, and released; and
(xiiix) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by Agent) payable under Section 10.04 to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
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 (or waiver in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of 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 the Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, formed and that 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 EffectDelaware and California;
(viv) a favorable opinion of Xxxxxxx, Xxxxxx & Xxxxx LLP, counsel to the Loan Parties acceptable to Agent Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning the Borrower and the Loan Documents in form and substance as the Administrative Agent or the Required Lenders may reasonably satisfactory to Agent;request; and
(viivi) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 Borrower certifying (A) that the conditions condition specified in Sections Section 4.02(a) and (b) have has been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and , (C) all insurance required to be maintained pursuant to if any Debt Ratings are then in effect, the Loan Documents current Debt Ratings, and (D) that no Default has been obtained occurred and is in effect;
(ix) a certificate signed continuing or would result from the consummation of the transactions contemplated by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to this Agreement or any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the other Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may requireDocument.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date Date, including pursuant to the Fee Letters, and all reasonable and documented out-of-pocket expenses required to be paid pursuant to the Commitment Letter and the Fee Letters, in each case, to the extent invoiced at least three Business Days prior to the Closing Date, shall have been paid.
(c) At least three Business Days prior to the Closing Date, the Borrower shall have provided to the Administrative Agent and the Lenders all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification, that has been requested in writing not less than ten Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced at least three Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(e) The Borrower shall have paid the Existing Credit Agreement Outstanding Obligations and the Existing Credit Agreement shall have been (or concurrently with the Closing Date shall be) terminated. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Lenders party hereto, comprising the “Required Lenders” under the Existing Credit Agreement, and the Borrower agree that, upon the effectiveness of this Agreement, all commitments under the Existing Credit Agreement shall terminate in their entirety and automatically irrespective of the deadline for delivery of notice of termination set forth in Section 2.06(a) of the Existing Credit Agreement.
Appears in 1 contract
Samples: Credit Agreement (Qualcomm Inc/De)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf of each party to this Agreementand the Guaranty;
(ii) a Note executed by the Borrower in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) each Collateral Document set forth on Schedule 1.01A, duly executed by each Loan Party party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein (except as set forth on Schedule 1.01A) accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank,
(B) to the extent any Mortgages are delivered on the Closing Date, to the extent required under the Collateral and Guarantee Requirement, opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent; and
(C) evidence that all other actions, recordings and filings (other than as set forth on Schedule 1.01A) that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) party or is to be a certificate of Borrower, dated party on the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-lawsDate;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formedopinion from (x) Ropes & Xxxx LLP, and that 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 New York counsel to the Loan Parties acceptable to Agent addressed to Agent substantially in the form of Exhibit H and each Lender, (y) the legal opinion of local counsel in Arizona and Nevada as to may be required by the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Administrative Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event not occurred any event, development or circumstance since the date of the Audited Financial Statements December 31, 2005, that has had or could would reasonably be reasonably expected to have, either individually or in the aggregate, have a Company Material Adverse Effect; ;
(vii) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) after giving effect to the Transaction, from the Chief Financial Officer of the Borrower;
(viii) a certified copy of the Sponsor Management Agreement, including a certification by a Responsible Officer of the Borrower that such agreement is in full force and effect as of the Closing Date;
(Cix) evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and that the Administrative Agent has been named as loss payee under each insurance policy with respect to such insurance as to which the Administrative Agent shall have requested to be so named;
(ixx) a certificate signed certified copy of the Merger Agreement, the material provisions of which shall not have been amended, supplemented or otherwise modified (pursuant to a waiver or otherwise) in a manner materially adverse to the Lenders without the prior written consent of the Arrangers (which consent shall not have been and shall not be unreasonably withheld, conditioned or delayed), duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower attesting to the Solvency that such documents are in full force and effect as of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(xxi) evidence that all insurance required to be maintained pursuant a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and releasedinitial Credit Extension; and
(xii) such other assurancesa completed Perfection Certificate (as defined in the Security Agreement), certificatesexecuted and delivered by a Responsible Officer of the Borrower, documents, consents or opinions as Agent or the Required Lenders reasonably may requiretogether with all attachments contemplated thereby.
(b) Without duplication of amounts described in clause (c) below, any All fees and expenses required to be paid on or hereunder and invoiced before the Closing Date shall have been paidpaid in full in cash.
(c) Unless waived by Agent(i) Prior to or simultaneously with the initial Credit Extension, the Equity Contribution shall have been funded in full in cash; and (ii) prior to or substantially concurrently with the initial Credit Extension, (A) the Merger shall be consummated in accordance with the terms of the Merger Agreement and in compliance with applicable material Laws and regulatory approvals and (B) the other Transactions to be consummated on or prior to the Closing Date shall have been consummated.
(d) Prior to or simultaneously with the initial Credit Extensions, the Borrower shall have paid received (i) at least $450,000,000 in gross cash proceeds from the issuance of the Senior Subordinated Notes and (ii) at least $650,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) Prior to or simultaneously with the initial Credit Extensions, the Borrower shall have taken all reasonable feesnecessary actions such that, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) after giving effect to the extent invoicedTransaction, prior (i) the Borrower and its Subsidiaries shall have outstanding no Indebtedness or preferred Equity Interests other than (A) the Loans and L/C Obligations, (B) the New Notes and (C) Indebtedness permitted under Section 7.03 and (ii) the Borrower shall have outstanding no Equity Interests (or securities convertible into or exchangeable for Equity Interests or rights or options to or on acquire Equity Interests) other than Qualified Equity Interests.
(f) The Arrangers and the Closing Date, plus Lenders shall have received (i) the Audited Financial Statements and the audit report for such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings financial statements (provided that such estimate which shall not thereafter preclude a final settling be subject to any qualification) and (ii) unaudited consolidated balance sheets and related statements of accounts between Borrower income, stockholders’ equity and Agentcash flows of West and its Subsidiaries for (A) the fiscal quarter ended June 30, 2006 and (B) the six month period ended on such date (collectively, the “Unaudited Financial Statements”), which financial statements described in clauses (i) and (ii) shall be prepared in accordance with GAAP.
(g) The Arrangers and the Lenders shall have received the Pro Forma Financial Statements.
(h) The Administrative Agent shall have received evidence satisfactory to the Administrative Agent that the Existing Credit Agreement shall be simultaneously terminated and all amounts thereunder shall be simultaneously paid in full.
Appears in 1 contract
Samples: Credit Agreement (West Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial the Credit Extension Extensions on the Original Closing Date hereunder is was subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty to the extent such Loan Party is a party thereto, each dated the 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 signed on behalf of each (including by all Lenders party to this Agreementhereto);
(ii) a Note executed by each relevant Borrower in favor of each Lender requesting that has requested a NoteNote more than three (3) Business Days prior to the Original Closing Date;
(iii) except where delivery after the Original Closing Date is contemplated by Section 6.14(a), each Collateral Document set forth on Schedule 1.01G, duly executed by each Loan Party party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied, if applicable, by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, and
(B) where appropriate and customary in each relevant jurisdiction where the Guarantors are organized, evidence that all other actions, recordings and filings that the Administrative Agent may acting reasonably deem necessary to satisfy the Collateral and Guarantee Requirement (and as have been notified to the Borrowers’ Agent or their counsel no later than three (3) Business Days prior to the Original Closing Date) shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require (and as have been notified to the Borrowers’ Agent no later than three (3) Business Days before the Original Closing Date) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a partyparty or is to be a party on the Original Closing Date;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as the executed legal opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special U.S. counsel to resolutions the Company and certain other Loan Parties, substantially in the form of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, Exhibit H; and
(B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formed, and that 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 executed legal opinion of local counsel to the Lenders or Loan Parties acceptable to Agent addressed to Agent and each LenderParties, as to applicable, in the matters set forth concerning Borrower and the Loan Documents jurisdictions listed on Schedule 4.01(a)(v)(B), in form and substance reasonably satisfactory to the Administrative Agent;
(vi) a certificate signed by a Company Financial Officer certifying that since the date of the Acquisition Agreement there has been no Material Adverse Change;
(vii) a certificate of signed by a Responsible Company Financial Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with attesting to the execution, delivery and performance by Borrower and the validity against Borrower Solvency of the Loan Documents Parties (taken as a whole) after giving effect to which it is a partythe Transactions, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredfrom;
(viii) a certificate signed except as contemplated by a Responsible Officer of Borrower certifying (A) Section 6.14(a), evidence that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effecteffect and that the Collateral Agent has been named as loss payee, mortgagee and additional insured under each insurance policy with respect to such insurance as to which the Collateral Agent shall have requested to be so named;
(ix) a certificate signed by a Responsible Officer of Borrower attesting Committed Loan Notice relating to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, Credit Extensions made on the Original Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Intercreditor Agreement, executed and delivered by a duly authorized officer of the applicable Loan Documents has been obtained Parties and is in effect;of the Collateral Agent and other agents party thereto; and
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may requirenon-U.S. documentation set forth on Schedule 4.01(a)(xi).
(b) Without duplication of amounts described in clause prior to or substantially simultaneously with the Credit Extensions made on the Original Closing Date, arrangements reasonably satisfactory to the Arrangers shall have been made to pay all fees and expenses (cto the extent invoices for such expenses have been provided at least five (5) below, any fees Business Days prior to the Original Closing Date) required to be paid hereunder by the Company or any Borrower from the Credit Extensions made on or before the Original Closing Date shall have been paidDate.
(c) Unless waived by Agentprior to or substantially simultaneously with the Credit Extensions made on the Original Closing Date, Borrower the Acquisition shall have paid all been consummated in accordance with the terms of the Acquisition Agreement (except for the filing of the merger certificate which shall occur substantially concurrently), without giving effect to any amendments or waivers thereto (excluding any waiver by Lyondell of the conditions set forth in Section 6.3(a)(i) of the Acquisition Agreement) that are materially adverse to the Lenders made without reasonable feesconsent of the Arrangers (such consent not to be unreasonably withheld or delayed), charges and disbursements in compliance with applicable material Laws and regulatory approvals.
(d) prior to or substantially simultaneously with the Credit Extensions for Tranche A Term Loans made on the Original Closing Date, the Company shall have received at least $8,000,000,000 in gross cash proceeds from the issuance of counsel to Agent the Senior Second Interim Loans.
(directly to such counsel if requested by Agente) the Company and its Subsidiaries shall have outstanding no Financial Indebtedness or Disqualified Equity Interests other than (A) the Loans and other Obligations, (B) the Senior Second Lien Interim Loans, (C) the Existing Notes, (D) Existing Indebtedness (including letters of credit issued and outstanding on the Original Closing Date), (E) the Asset Backed Credit Facility, Receivables Financing and Securitization Transactions and (F) liabilities incurred in the ordinary course of business and (G) liabilities disclosed in the Pro Forma Financial Statements, in each case to the extent invoiced, prior to or on permitted by Section 7.03.
(f) the Closing Date, plus such additional amounts of such fees, charges Administrative Agent shall have received all documentation and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or other information mutually agreed to be incurred required by it through regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the closing proceedings United States PATRIOT Act (provided that such estimate shall not thereafter preclude a final settling Title III of accounts between Borrower and AgentPub. L. 107-56 (signed into law October 26, 2001)) (the “USA Patriot Act”), including the information described in Section 10.20.
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:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, the Security Agreement, the Pledge Agreement signed on behalf of and the Lockbox Account Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of 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 the Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that 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 would not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable an opinion of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, substantially in the form attached as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to AgentExhibit F;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 each Loan Party certifying that except as has been obtained as of the Closing Date, no approval, consent, exemption, authorization, or other action by (other than in the case of enforcement, a court order), or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, and such consents, licenses and approvals previously obtained are in full force and effect;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying that, except as disclosed to the Administrative Agent in writing, (A) that the conditions specified in Sections 4.02(a5.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; , and (C) all insurance required there is no action, suit, investigation or proceeding pending or, to his knowledge after reasonable investigation, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be maintained pursuant expected (y) to materially and adversely affect the Borrower and its Subsidiaries, or (z) to affect any transaction contemplated hereby or the ability of the Borrower and its Subsidiaries or any other Loan Party to perform their respective obligations under the Loan Documents;
(viii) a certificate signed by a Responsible Officer of the Borrower certifying that Consolidated EBITDA is greater than zero for the month ending June 30, 2002, including a calculation to the Loan Documents has been obtained and is in effectreasonable satisfaction of the Administrative Agent of such Consolidated EBITDA;
(ix) a certificate signed by a Responsible Officer of the Borrower attesting to the Solvency demonstrating compliance as of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing DateDate with the financial covenants contained in Section 8.11, substantially in the form of Exhibit C;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) receipt by the Administrative Agent of the consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended December 31, 1999, 2000 and 2001, including balance sheet, income and cash flow statements audited by an independent certified public accountant of nationally recognized standing reasonably acceptable to the Required Lenders and prepared in conformity with GAAP and such other financial information as the Administrative Agent may reasonably request;
(xii) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, the Existing Credit Agreement has been or concurrently with the Closing Date will beis being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(xiii) Uniform Commercial Code search results showing only those Liens as are acceptable to the Lenders;
(xiv) receipt and review, paid with results reasonably satisfactory to the Administrative Agent and its counsel, of (A) 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, if any, of the Borrower and its Subsidiaries and (B) the December 31, 2001 audit report by Ernst & Young covering the Borrower's accounts receivable, inventory and payables and the controls and systems of the Borrower and its Subsidiaries along with any final management letter or other report submitted to the Borrower by Ernst & Young in fullconnection with such audit;
(xv) receipt by the Administrative Agent of (A) such waivers or amendments to any of the documents pertaining to the SOW Receivables Securitization as may be deemed necessary by the Administrative Agent in connection with the rights of the Lenders in and to the Collateral and (B) the Intercreditor Agreement;
(xvi) copies of the SOW Receivables Securitization Documents, dischargedthe NeuStar Stockholders' Agreement, the NeuLevel Stockholders' Agreement and the Lockheed Note, certified by a Responsible Officer of the Borrower, to be true, correct and complete copies of such documents as in effect on the Closing Date;
(xvii) evidence reasonably satisfactory to the Administrative Agent that (A) the Consolidated EBITDA loss of the Borrower, excluding the Numbering Line of Business, for the quarter ended June 30, 2002 shall not have been greater than $8,500,000 and (B) the LNP Contract is in full force and effect;
(xviii) receipt by the Administrative Agent of the original LNP Receivables Tracking Certificate, duly endorsed in blank or with such other instruments of transfer as are acceptable to the Administrative Agent;
(xix) receipt by the Administrative Agent of a reliance letter in form and substance reasonably satisfactory to the Administrative Agent with respect to the legal opinion of Xxxxxxx Xxxxxxxx & Xxxx regarding the bankruptcy remote status of NeuStar Funding;
(xx) evidence of the filing of Uniform Commercial Code financing statements reflecting the 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 released; andsuch other documents and/or evidence of other actions as may be necessary under applicable law to perfect the Liens of the Administrative Agent under the Security Instruments as a first priority Lien in and to such other Collateral as the Administrative Agent may require, including without limitation the delivery by the Borrower of all stock certificates evidencing Pledged Interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(xiixxi) evidence of the consent of North American Portability Management LLC as to the Lien on the LNP Receivables granted in favor of the Administrative Agent pursuant to the Security Agreement;
(xxii) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Neustar Inc)
Conditions of Initial Credit Extension. The effectiveness of this Agreement and the obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder is are subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing 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 Agent and each of the LendersAdministrative Agent:
(i) executed counterparts of this Agreement signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrowers;
(ii) a Note executed counterparts of the Holdings Guaranty, the Libbey Glass Guaranty and the Subsidiary Guaranty, in such number as the Administrative Agent may request;
(a) Revolving Loan Notes executed by the US Borrower in favor of each Lender requesting such a Note, (b) Offshore Currency Loan Notes executed by the Dutch Borrower in favor of each Lender requesting such a Note, (c) Swing Line Notes executed by (i) the US Borrower in favor the Swing Line Lender and (ii) the Dutch Borrower in favor of the Swing Line Lender, and (d) Negotiated Rate Loan Notes executed by the US Borrower in favor of each Lender requesting such a Note;
(iiiiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Agent may each Loan Party, all in form and substance reasonably require evidencing satisfactory to the identityAdministrative Agent, which establish the identity and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(ivv) a certificate of with respect to the Dutch Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions a copy of its board deed of directorsincorporation (akte van oprichting) as filed with the trade register at the applicable chamber of commerce, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-lawsarticles of association (statuten) as currently in force and as filed with the trade register at the applicable chamber of commerce and certified by one of its directors;
(vvi) with respect to each Loan Party other than the Dutch Borrower, such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each such Loan Party is duly organized or formed, and that Borrower each such 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 counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 on behalf of each Borrower certifying (A) that the conditions specified in Sections 4.02(a) 4.01 and (b) 4.02 have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that December 31, 2003 which has had or could be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; ;
(viii) opinions of (A) Xxxxxx & Xxxxxxx LLP, US counsel to each Loan Party, and (CB) all insurance required to be maintained pursuant General Counsel of the US Borrower, each in substance reasonably satisfactory to the Loan Documents has been obtained and is in effectAdministrative Agent;
(ix) a certificate signed by a Responsible Officer an opinion of Borrower attesting Cleary, Gottlieb, Xxxxx & Xxxxxxxx, Dutch counsel to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of CreditDutch Borrower, in each case, on substance reasonably satisfactory to the Closing Date;Administrative Agent; and
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents Existing Credit Agreement has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Effective Date will be, is being terminated and all obligations and liabilities thereunder (other than continuing obligations in the nature of indemnities for amounts not yet due and payable) shall have been or are concurrently with the Effective Date being paid and satisfied in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, Borrower the Borrowers shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel the Administrative Agent relating to Agent (directly to such counsel if requested by Agent) this Agreement to the extent invoiced, 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 Borrower and Agent).
Appears in 1 contract
Samples: Credit Agreement (Libbey 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 precedentprecedent in form and substance satisfactory to the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) ), unless otherwise specified in the Post-Closing Letter, and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf Agreement, each Guaranty, the Modification Agreement, the Security Agreement, together with related UCC-1 financing statements, intellectual property filings and stock certificates for 100% of all Equity Interests of each party Domestic Subsidiary and for 65% of all Equity Interests of any Foreign Subsidiary and stock powers, sufficient in number for distribution to this Agreementthe Administrative Agent, each Lender and the Borrower;
(ii) a Note Revolving Loan Notes executed by the Borrower in favor of each Lender requesting Lender, each in a Noteprincipal amount equal to such Lender’s Revolving Commitment;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender in the principal amount of the Swing Line Sublimit;
(iv) Term Loan Notes executed by the Borrower in favor of each Lender, each in a principal amount equal to such Lender’s Term Commitment;
(v) Certificates showing the existence of all insurance policies required by Section 6.07, naming the Administrative Agent as loss payee and additional insured.
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(vvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that Borrower 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;
(viviii) a favorable opinion of Xxxxxxxxxxx Xxxxxxxx White Xxxxxxxx & Xxxxxx, counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the matters set forth concerning Borrower Loan Parties and the Loan Documents in form and substance reasonably satisfactory to Agentas the Required Lenders may request;
(viiix) a favorable opinion of local counsel for the Loan Parties in such jurisdictions for which the Administrative Agent shall request, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Required Lenders may request;
(x) a certificate of a Responsible Officer of Borrower each Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiixi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) and 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 Loan Documents has been obtained and is in effect;
(ixxii) current flood plain certificates for each parcel of real estate owned by the Borrower or any other Loan Party and which is subject to a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and releasedMortgage; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date under the Fee Letter or pursuant to this Agreement shall have been paid.
(c) All unpaid principal outstanding and interest and fees accrued through the Closing Date under the Existing Credit Agreement, and all other fees, expenses and other charges outstanding thereunder (including all amounts, if any, due under Section 3.05 of the Existing Credit Agreement arising as a result of the termination of all interest periods thereunder on the Closing Date) shall be paid and refinanced in part with the application of the proceeds of the initial Revolving Loans and Term Loans.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(e) After giving effect to the Aitec Acquisition, there shall have occurred no material adverse change in the operations, business, properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole since May 31, 2006.
(f) The Closing Date shall have occurred on or before May 31, 2007. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Team Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to immaterial matters or immaterial items (which shall not include the incumbency certificate, resolutions, articles or bylaws of the Borrower) specified in clause (iii) or (iv) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf of and the Intercreditor Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed Pledge Agreement, Security Agreement and Deed of Trust in appropriate form for recording, as applicable, together with
(A) UCC-1 financing statements executed by the Borrower or the Subsidiaries, as applicable, to be filed, registered or recorded as necessary or advisable to perfect the Liens of the Administrative Agent for the benefit of the Lenders under the Collateral Documents in accordance with applicable law;
(B) written advice relating to such Lien and judgment searches as the Administrative Agent shall have reasonably requested with respect to any of the Collateral, and such termination statements or other documents, including payoff letters, as may be necessary to release any Lien not permitted by Section 7.01;
(C) evidence that all other actions necessary or, in the reasonable opinion of the Administrative Agent, desirable, have been taken to perfect and protect the first priority security interest created by the Collateral Documents other than the Security Agreement, subject only to Liens permitted under Section 7.01(c), (d) and (h), and the security interest created by the Security Agreement, subject only to Liens permitted under Section 7.01(b), (c), (d), (h), (j) and (o);
(D) evidence that adequate arrangements have been made for payment by the Borrower of any filing or recording tax or fee in connection with the Deed of Trust;
(E) with respect to the Mortgaged Property, standard A.L.T.A. or comparable policies of title insurance or a binder or binders issued by Fidelity National Title insuring or undertaking to insure, in the case of a binder, that the applicable Deed of Trust creates and constitute valid Liens against such Mortgaged Property in favor of each Lender requesting a Notethe Administrative Agent, for the benefit of the Lenders, subject only to exceptions reasonably acceptable to the Administrative Agent and the Required Lenders, with such endorsements and affirmative insurance as the Administrative Agent or the Required Lenders may reasonably request;
(F) proof of payment of all title insurance premiums, documentary stamp or intangible taxes, recording fees and mortgage taxes payable in connection with the recording of the Deed of Trust or the issuance of the title insurance policies, including sums, if any, due in connection with any future advances that may be in the form of disbursement instructions and associated payoff letters approved by the relevant title insurers and reasonably acceptable to the Administrative Agent;
(G) all certificates and instruments representing Pledged Collateral and such stock transfer powers executed in blank as the Administrative Agent may specify; and
(H) evidence that the Administrative Agent has been named loss payee under applicable policies of casualty insurance covering the Collateral under the Security Agreement, and additional insured under all policies of liability insurance required by the Collateral Documents;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated such evidence as the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as Administrative Agent may reasonably require to evidence verify that Borrower each Loan Party is duly organized or formed, and that Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownershipin which it is required to be qualified to engage in business, lease or operation including certified copies of properties or the conduct each Loan Party's Organization Documents, certificates of its good standing and/or qualification to engage in business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectand tax clearance certificates;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that other than as disclosed in the quarterly financial statements of the Borrower for the period ended June 30, 2001 or in other public disclosures made by the Borrower or as disclosed in writing to the Lenders on or before October 16, 2001, there has been no event or circumstance since the date of the Audited Financial Statements that which has had or could be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ixvi) a certificate signed by a Responsible Officer opinions of Borrower attesting counsel to each Loan Party substantially in the Solvency forms of Borrower both before Exhibits E-1, E-2, and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing DateE-3;
(xvii) evidence that all insurance required to be maintained pursuant to the Loan Documents Existing Credit Facility has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid is being terminated and that satisfactory arrangements have been made for the payment in full, dischargedfull of all obligations thereunder;
(viii) a copy of (A) summary appraisal reports with respect to all of the timberlands owned by the Borrower and its Subsidiaries in Texas and Louisiana, and released(B) detailed appraisal reports with respect to all of the Mortgaged Property, each in form and substance satisfactory to the Administrative Agent and the Lenders and prepared by an independent appraiser retained by the Administrative Agent at the Borrower's expense, and with respect to the appraisal of the Mortgaged Property, showing that the Collateral Coverage Ratio is at least 2.0:1.0;
(ix) evidence that the Permitted Securitization has closed and that the Borrower has a Borrowing Base (as defined in the Permitted Securitization Credit and Security Agreement) of at least $70,000,000;
(x) executed copies of the Second Amendment to Standby Purchase and Note Support Agreement, in form and substance acceptable to the Required Lenders; and
(xiixi) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date pursuant to the Loan Documents shall have been paid.
(c) Unless waived by Agent, The Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to immaterial matters or items specified in clause (v) or (vi) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement signed on behalf of and the Guaranty, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note Revolving Loan Notes executed by the Borrower in favor of each Lender requesting Lender, each in a Noteprincipal amount equal to such Lender's Commitment;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender in the principal amount of the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications evidence as the Administrative Agent may reasonably require to evidence verify that Borrower each Loan Party is duly organized or formed, and that 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 counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant qualified to the engage in business, including certified copies of each Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).Party's
Appears in 1 contract
Samples: Credit Agreement (Elcor Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder on or after the Second Restatement Effective Date is subject to satisfaction of the following conditions precedentprecedent except as otherwise agreed between the Borrowers and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or a Guarantor, each dated the Closing Date (oras applicable, 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:its legal counsel (subject to Section 6.13(c)):
(i) executed counterparts of this Agreement signed on behalf of and each party to this AgreementGuaranty;
(ii) a Note executed by Borrower the Borrowers in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Second Restatement Effective Date;
(iii) the elements of the Collateral and Guarantee Requirement required to be satisfied on the Second Restatement Effective Date shall have been satisfied and each Collateral Document set forth on Schedule 1.01B required to be executed on the Second Restatement Effective Date as indicated on such schedule, duly executed by each Loan Party or a Guarantor, as applicable, thereto, together with evidence that all other actions, searches, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; provided that to the extent any lien search, Guarantee, Collateral or insurance referred to in this clause (iii) (other than pledge and perfection of security interests in Equity Interests of Domestic Subsidiaries of the Borrowers and the Guarantors (to the extent required hereunder) and other assets with respect to which a Lien may be perfected by the filing of a financing agreement under the Uniform Commercial Code) is not provided on the Second Restatement Effective Date after the Borrowers’ use of commercially reasonable efforts to do so, the delivery of such lien search, Guarantee, Collateral or insurance referred to in clause (iii) above shall not constitute a condition precedent to the availability of the Revolving Loans on the Second Restatement Effective Date but shall be required to be delivered after the Second Restatement Effective Date pursuant to Section 6.13(c) (it being understood that, due to the eligibility requirements set forth in the definitions of “Eligible Accounts”, “Eligible Inventory”, “Eligible In-Transit Inventory”, “Eligible Real Property” and “Eligible Rolling Stock”, Excess Availability may be adversely affected if the above mentioned conditions are not satisfied);
(iv) (A) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party and each Guarantor 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 Borrower such Loan Party or such Guarantor is a party;
(iv) party or is to be a certificate of Borrowerparty on the Second Restatement Effective Date, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear a good standing certificate from the signatures applicable Governmental Authority of each officer authorized to sign the Loan Documents, Party’s and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the each Guarantor’s jurisdiction of incorporation, organization of Borrower and or formation, each dated a true and correct copy of its by-lawsrecent date prior to the Second Restatement Effective Date;
(v) such documents and certifications as Agent may reasonably require to evidence that Borrower is duly organized or formed(A) an opinion from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, and that 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 New York counsel to the Loan Parties and (B) an opinion of local counsel to the Loan Parties, which opinions, in each case, shall be reasonably acceptable to the Administrative Agent addressed with regard to such matters of law as the Administrative Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance shall reasonably satisfactory to Agentrequest;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Lead Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedsince June 27, (B) that 2015, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; ;
(vii) a certificate attesting to the Solvency of Holdings and its Subsidiaries (Ctaken as a whole) on the Second Restatement Effective Date after giving effect to the Transactions, from the Treasurer of Holdings;
(viii) subject to clause (iii) above, evidence that all insurance (other than title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting effect and that the Administrative Agent has been named as loss payee and additional insured under each insurance policy with respect to such insurance as to which the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required Administrative Agent shall have requested to be maintained pursuant to the Loan Documents has been obtained and is in effectso named;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any All fees and expenses required to be paid hereunder, under the Fee Letter and invoiced on or before the Closing Second Restatement Effective Date shall have been paidpaid in full in cash or will be paid on the Second Restatement Effective Date.
(c) Unless waived by Agent, Borrower The Administrative Agent shall have paid received (i) unaudited consolidated balance sheets and related statements of income and cash flows of Holdings and its Subsidiaries and, if different, of Holdings and its Restricted Subsidiaries for the most recently ended fiscal quarter ending at least 45 days before the Second Restatement Effective Date, (ii) quarterly projected consolidated balance sheets of Holdings and its Subsidiaries as of each fiscal quarter end through the end of the fiscal year 2016, and the related consolidated statements of projected cash flow and projected income and a summary of the material underlying assumptions applicable thereto, and (iii) annual projected consolidated balance sheets of Holdings and its Subsidiaries as of each fiscal year end for each of fiscal years 2017 and 2018, and the related consolidated statements of projected cash flow and projected income and a summary of the material underlying assumptions applicable thereto (and such projections shall not be inconsistent with information provided to Xxxxx Fargo before the Second Restatement Effective Date).
(d) The Administrative Agent shall have received all reasonable feesdocumentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, charges and disbursements including the USA PATRIOT Act that has been requested reasonably in advance of counsel to the Second Restatement Effective Date.
(e) The Administrative Agent (directly to such counsel if requested by Agent) shall have received a Borrowing Base Certificate dated as of the Second Restatement Effective Date, relating to the extent invoicedmonth ended on December 26, prior 2015, and executed by the Treasurer of the Lead Borrower, and such Borrowing Base Certificate shall reflect an Excess Availability (after giving effect to or (without duplication) the Transactions and the Credit Extensions made on the Closing DateSecond Restatement Effective Date and deducting the Maximum Term Loan Payment Amount, plus such additional amounts if any) of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent)at least $320,000,000.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent, the Syndication Agent and each of the Lenders:
(i) executed counterparts of this Agreement signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of 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 Borrower is a partyDocuments;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation the state of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;Nevada.
(viv) a favorable opinion opinions of the General Counsel of the Borrower and of O'Melveny & Xxxxx LLP, counsel to the Loan Parties acceptable to Agent Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F and such other matters concerning the Borrower and the Loan Documents in form and substance as the Required Lenders may reasonably satisfactory to Agentrequest;
(viivi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by the Borrower and the validity against 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, other than, in the case of either clause (A) or (B), any such consents, licenses or approvals under applicable Gaming Laws which are not required to be obtained on or prior to the Closing Date, which consents, licenses or approvals the Borrower will seek in due course after the Closing Date;
(viiivii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, ; (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required the current Debt Ratings and a calculation of the Debt to be maintained pursuant Capitalization Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(xviii) evidence that all insurance required to be maintained pursuant to the Loan Documents Existing Credit Agreement has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and releasedis being terminated; and
(xiiix) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before August 15, 2004. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or 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 portion of the Term Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower (where applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Intercreditor Agreement signed on behalf of each party to this and the Security Agreement;
(ii) a Note Notes executed by the Borrower in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of 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 the Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified standing, as applicable in their respective jurisdictions of formation;
(v) such executed documents as the Administrative Agent may reasonably require 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 perfect (to the extent that failure then required pursuant to do so could not reasonably be expected to have a Material Adverse Effectthe terms of the Collateral Documents) the Lenders’ first priority (except as otherwise provided in any Intercreditor Agreement) security interest in the Collateral, including filings with the United States Surface Transportation Board;
(vi) evidence that the Administrative Agent, on behalf of the Lenders, shall have a perfected (to the extent then required pursuant to the terms of the Collateral Documents) security interest in the Collateral;
(vii) favorable opinion opinions of Xxxx Xxxxxxxx LLP and Xxxxxx Xxxx LLP, counsel to the Loan Parties acceptable to Agent Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(viiviii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a partyDocuments, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that that, except as otherwise provided in Section 5.03, no such consents, licenses or approvals are so required;
(viiiix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedno Default exists, (B) that the representations and warranties of the Borrower contained in Article V or any other Loan Document, or which are contained in any document furnished by the Borrower at any time under or in connection herewith or therewith, are true and correct in all material respects and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) a Borrowing Base Certificate as of the Closing Date, which shall demonstrate that the Borrowing Base equals or exceeds $ 264,705,882; and
(xi) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or the Required Lenders reasonably may require.
(b) Without duplication of amounts described At least five days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall deliver a Beneficial Ownership Certification in clause relation to the Borrower.
(c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.
(cd) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent), in each case, to the extent invoiced at least 1 day prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Article IV, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Letter of Credit Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Agent and each of the LendersAdministrative Agent:
(i) executed counterparts of this Agreement signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) a Pledge Agreement executed by the Borrower and its Subsidiaries (as required by this Agreement) in favor of the Administrative Agent for the benefit of the Lenders;
(iv) stock certificates, if any, for 100% of all voting Equity Interests of each Material Domestic Subsidiary and for 65% of all voting Equity Interests of each Material Foreign Subsidiary and stock powers, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; it being understood that such pledged stock shall not include JBO Stock;
(v) a Guaranty executed by each Guarantor in favor of the Administrative Agent and Lenders;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(vvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in Delaware 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;
(viviii) a favorable opinion of XxXxxxx, Xxxxxxxx and Xxxxxxxx, and Xxxxxx Xxxxxx, Esq., counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F and such other matters concerning Borrower the Loan Parties and the Loan Documents in form and substance as the Required Lenders may reasonably satisfactory to Agentrequest;
(viiix) copies of central filing UCC searches of the Borrower and its Subsidiaries, each such search showing no Liens except Liens permitted pursuant to Section 7.01;
(x) a certificate of a Responsible Officer of Borrower each Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, (other than Board approvals) required in connection with the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals (other than Board approvals) are so requiredrequired with respect thereto;
(viiixi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, 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) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(xxii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xixiii) evidence that all Indebtedness and all Liens the Audited Financial Statements;
(other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01xiv) have beenfinancial projections of the Borrower’s consolidated operations including, or concurrently with on a quarterly basis from the Closing Date will beuntil no less than the Maturity Date projected, paid in fullquarterly balance sheets, discharged, income statements and released; and
(xii) such other assurances, certificates, documents, consents or opinions as Agent or statements of cash flows of the Required Lenders reasonably may require.
(b) Without duplication of amounts described in clause (c) below, any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by Agent) to the extent invoiced, prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).its Subsidiaries;
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing 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 Lenders:
(i) executed counterparts of this Agreement signed on behalf of and the Reaffirmation Agreement, sufficient in number for distribution to the Administrative Agent, each party to this AgreementLender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Borrower such Loan Party is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that Borrower each Loan Party is duly organized or formed, and that each 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 would not reasonably be expected to have a Material Adverse EffectEffect (provided that, with respect to any Organization Documents of any Loan Party which would otherwise be delivered with any such certificate, such Loan Party may provide, in lieu thereof, a certification that such Organization Document has not been amended, modified, revoked or otherwise altered since its delivery to the Administrative Agent on the Original Closing Date (or in connection with any joinder, supplement or other transaction pursuant to which such Person became a Loan Party that occurred after the Original Closing Date) and otherwise remains in full force and effect);
(viv) a favorable an opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Loan Parties acceptable to Agent Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the matters set forth concerning Borrower Loan Parties and the Loan Documents in form and substance as the Administrative Agent may reasonably satisfactory to Agentrequest;
(viivi) a certificate of a Responsible Officer of Borrower each Loan Party either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower such Loan Party and the validity against Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements March 31, 2022 that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; ;
(viii) the Audited Financial Statements and the unaudited financial statements of the Borrower referred to in Section 5.05(a) and (C) all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effectb);
(ix) a certificate signed by a Responsible Officer of Borrower attesting to the Solvency of Borrower both before and after giving effect to any Borrowing, or the issuance of any Letters of Credit, in each case, on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xix) evidence that all Indebtedness and all Liens (other than Indebtedness existing on the Restatement Effective Date and otherwise permitted under Section 7.02 and Liens permitted under Section 7.017.03) have been, has been or concurrently with the Closing Restatement Effective Date will be, paid in full, discharged, is being terminated and all Liens securing any such Indebtedness have been or concurrently with the Restatement Effective Date are being released; and
(xiixi) such other assurances, certificates, documents, consents or opinions as Agent the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Without duplication (i) Upon the reasonable request of amounts described any Lender made at least five (5) Business Days prior to the Restatement Effective 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 clause connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least three (3) Business Days prior to the Restatement Effective Date and (ii) at least three (3) Business Days prior to the Restatement Effective Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(c) below, any Any fees required to be paid on or before the Closing Restatement Effective Date shall have been paid.
(cd) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced, invoiced prior to or on the Closing Restatement Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Restatement Effective Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (New York Times Co)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to immaterial matters or items specified in clause (iv) or (v) below with respect to which the Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower to the extent the Borrower’s signature is required thereon, each dated the 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) an executed counterparts counterpart of this Agreement signed on behalf of each party to this Agreement;
(ii) a Note Revolving Loan Notes executed by the Borrower in favor of each Lender requesting such a Note, each in a principal amount equal to such Lender’s Commitment as of the Closing Date;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender (if the Swing Line Lender requests such a Note) in the principal amount of the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party;
(iv) a certificate of Borrower, dated the Closing Date and executed by a Responsible Officer of Borrower, which shall (A) certify as to resolutions of its board of directors, authorizing the execution, delivery and performance of the Loan Documents, (B) identify by name and title and bear the signatures of each officer authorized to sign the Loan Documents, and (C) contain appropriate attachments, including the certificate or articles of incorporation Borrower certified by the relevant authority of the jurisdiction of organization of Borrower and a true and correct copy of its by-laws;
(v) such documents and certifications evidence as the Administrative Agent may reasonably require to evidence verify that the Borrower is duly organized or formedincorporated, validly existing and that Borrower is validly existing, in good standing in Delaware and is qualified to engage in business and is in each jurisdiction where its ownershipgood standing in Texas, lease or operation including certified copies 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 EffectBorrower’s Organization Documents;
(vi) a favorable opinion of counsel to the Loan Parties acceptable to Agent addressed to Agent and each Lender, as to the matters set forth concerning Borrower and the Loan Documents in form and substance reasonably satisfactory to Agent;
(vii) a certificate of a Responsible Officer of Borrower either (A) attaching copies of all material consents, licenses and approvals of third parties, if any, required in connection with the execution, delivery and performance by Borrower and the validity against 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 the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that that, except as set forth in Schedule 5.06, there has been no event or circumstance since the date of the Audited Financial Statements that which 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 the current Debt Ratings;
(vii) an opinion of Xxxxxxx Xxxxx LLP, counsel to the Loan Documents has been obtained and is Borrower, substantially in effectthe form of Exhibit H-1;
(viii) an opinion of Xxxxxxxx X. Xxxxxxx, General Counsel of the Borrower, substantially in the form of Exhibit H-2;
(ix) a certificate signed by a Responsible Officer of the Borrower attesting to certifying that, on the Solvency of Borrower both before Closing Date and after giving effect to any Borrowingthe Loans to be made on the Closing Date and the payments being made with the proceeds thereof to amounts outstanding under the 2004 Credit Agreement, or (A) the issuance of any Borrower has paid all principal, interest, fees and other amounts outstanding under the 2004 Credit Agreement and (B) no “Letters of Credit, ” (as defined in each case, the 2004 Credit Agreement) are outstanding. Each Lender that is a party to the 2004 Credit Agreement hereby waives any costs or fees under the 2004 Credit Agreement relating to the prepayment of the 2004 Credit Agreement on the Closing Date;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xi) evidence that all Indebtedness and all Liens (other than Indebtedness permitted under Section 7.02 and Liens permitted under Section 7.01) have been, or concurrently with the Closing Date will be, paid in full, discharged, and released; and
(xii) such other assurances, certificates, documents, consents certificates or opinions documents as the Administrative Agent or the Required Lenders may reasonably may require.request;
(b) Without duplication of amounts described in clause (c) below, any Any fees required to be paid on or before the Closing Date shall have been paid.; and
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by Agent) to the extent invoiced, invoiced in reasonable detail at least three 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 Borrower and Agent).
Appears in 1 contract
Samples: Credit Agreement (Bj Services Co)
