Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent 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 facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders: (i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; (ii) Revolving Loan Notes executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to 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 require evidencing the identity, authority and capacity 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; (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 Nevada and Texas; (vi) a favorable opinion of Xxxxxx and Xxxxx, LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably request; (vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by 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, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent; (x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect; (xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and (xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require. (b) The fee set forth in the invitation letter of the Borrower to each Lender and any other fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect. (c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). (d) The Closing Date shall have occurred on or before June 30, 2011. (e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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
Samples: Credit Agreement (Gruma Sab De Cv)
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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning 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, each of the Security Instruments, the Subsidiary Guaranty and the Mid-State Homes Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes executed by the Borrower in favor of each Revolving Lender requesting such a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a Swing Line Note Term Loan Notes executed by the Borrower in favor of the Swing Line Lender, in each Term Loan Lender requesting such a principal amount equal to the Swing Line SublimitNote;
(iv) such certificates of resolutions or other action, incumbency certificates (including specimen signatures), and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the 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 Nevada (A) its jurisdiction of formation and Texas(B) in Alabama if the Borrower or such Loan Party is formed in a jurisdiction other than Alabama but has assets or operations in Alabama, including in each such case certified copies of each Loan Party’s Organization Documents, shareholders’ agreements, certificates of good standing and/or qualification to engage in business;
(vi) a favorable opinion of Xxxxxx and Xxxxx, Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the BorrowerLoan Parties, and appropriate local counsel to the Loan Parties, each addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of identifying all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower each Loan Party and the validity against the Borrower each such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, and attaching true and correct copies thereof 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 certifying:
(A) that the conditions specified in Sections 4.02(a5.02(a) and (b) have been satisfied, and ,
(B) as to the matters described in Section 5.01(d);
(C) that none of the Merger Documents (including any condition to consummation of the Merger) has been altered, amended, waived or otherwise changed or supplemented since their execution on June 17, 2005, in any respect materially adverse to the Lenders, except to the extent agreed to by prior written consent of the Arrangers, which consent shall not be unreasonably withheld;
(D) that the Merger has been consummated prior to, or is being consummated substantially simultaneously with, the Closing Date, in accordance with the terms of the Merger Documents (only as amended, altered, waived or otherwise changed in compliance with subpart (D) above);
(E) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or material adverse change in the aggregate, a Material Adverse Effectfacts and information regarding the Loan Parties as represented to date;
(ix) UCC searches, as of a period ending reasonably evidence satisfactory to the Administrative AgentArrangers of the consummation, listing prior to or substantially simultaneously with the occurrence of the Closing Date, of each of the following, in each case in compliance with all effective financing statements which name applicable laws and regulations, with the receipt of all necessary material governmental, shareholder and third party consents (including Xxxx-Xxxxx-Xxxxxx clearance) and approvals: (A) the creation of New Holdco and the transfer of the Equity Interests of US Pipe and of JW MergerCo thereto, such that after giving effect thereto (but prior to giving effect to the Merger and to the US Pipe Contribution) New Holdco is a direct subsidiary of the Borrower and JW MergerCo, Inc. and US Pipe are direct Subsidiaries of New Holdco, (B) the Entity Conversions, including the filing of any certificates of conversion required or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent, (C) the US Pipe Contribution in accordance with the terms of, and such that after giving effect thereto US Pipe is a “Restricted Subsidiary” under, the Indentures for both the Xxxxxxx Water Products Notes and the Xxxxxxx Group Notes, and otherwise on terms and conditions reasonably satisfactory to the Arrangers, (D) the receipt by New Holdco of not less than $400,000,000 of net proceeds from the Dividend Distribution and of not less than $20,000,000 of net proceeds from the Subordinated New Holdco Note, and the application of all such proceeds as consideration for the Merger, (E) the refinancing (in an amount sufficient, inter alia, to support the tender, defeasance or satisfaction and discharge of the Xxxxxxx Group Second Lien Notes), termination and payment in full of all obligations outstanding under the Existing Xxxxxxx Credit Agreement with the Replacement Xxxxxxx Facilities, and (F) the Put Backstop Commitment Letter Amendment;
(x) a certificate signed by the Chief Financial Officer of the Borrower certifying that after giving effect to the entering into of the Loan Documents, the termination of the Existing Credit Agreement, and the consummation of all of the Transactions, the Borrower and its Subsidiaries, measured on a consolidated basis, are Solvent;
(xi) evidence satisfactory to the Arrangers that the Existing Credit Agreement has been or concurrently with the Closing Date 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) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xixiii) financial projections an initial Revolving Loan Notice, if any;
(xiv) an initial Term Loan Interest Rate Selection Notice, if any;
(xv) delivery of Uniform Commercial Code financing statements suitable in form and substance for a period of four Fiscal Years after filing in all places required by applicable law to perfect the Closing Date prepared by management Liens of the BorrowerAdministrative Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable law to perfect the Liens of the Administrative Agent under such Security Instruments as a first priority Lien in form satisfactory and to such other Collateral as the Administrative Agent may require, including without limitation the delivery by the Borrower of all certificates evidencing Pledged Interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(xvi) Mineral Rights Mortgages and such Mortgaged Coal Property Support Documents as the Administrative Agent may request with respect to each lease or other grant of mineral rights as to which the Borrower or a Guarantor is a lessee or grantee, with such exceptions as are agreed by the Arrangers;
(xvii) with respect to those parcels of real property set forth on Schedule 3.01, a Mortgage and such Mortgaged Property Support Documents as the Administrative Agent may request;
(xviii) Uniform Commercial Code search results showing only those Liens as are acceptable to the Administrative Agent; andLenders;
(xiixix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders may reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date Administrative Agent shall have occurred on or before June 30be satisfied that after giving effect to the initial Credit Extension hereunder, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing remaining amount available to each Lender (as such term is defined in the Existing Credit Agreement) be drawn under the Existing Revolving Credit Agreement, other Facility shall not be less than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect$112,500,000. Without limiting the generality of the provisions of Section 9.0410.04, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 Letter of Credit Issuer to make its any initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall following items (except those items that are expressly permitted to be originals or facsimiles (followed promptly by originals) unless otherwise specifieddelivered after the Closing Date pursuant to the Post-Closing Agreement), each properly executed by a Responsible Officer of the Borrowereach Loan Party which is party thereto and each other party which is a party thereto, as applicable, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, Fee Letter and each Lender and of the BorrowerSecurity Instruments;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates (including specimen signatures), and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada its jurisdiction of organization and Texasin any other jurisdiction in which the failure to be so qualified could reasonably be expected to have a Material Adverse Effect, including certified copies of such Loan Party’s Organization Documents, shareholders’ agreements, certificates of good standing and/or qualification to engage in business from each jurisdiction identified on Schedule 5.01 hereto;
(viv) a favorable opinion of Xxxxxx and Xxxxx, & Xxxxxxx LLP, counsel to the BorrowerLoan Parties, and acceptable local counsel to the Loan Parties, each addressed to the Administrative Agent and each LenderLender and their successors and assigns, as to such the matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
(viivi) a certificate certificates of a Responsible Officer Officers of the Borrower Agent or the applicable Loan Parties either (A) attaching copies of stating that all consents, licenses and approvals required in connection with the execution, delivery and performance by the each Borrower and the validity against the Borrower each such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be party are in full force and effect, and attaching true and correct copies thereof or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower Agent certifying (A) that the conditions specified in Sections 4.02(a5.02(a) and (b5.02(b) have been satisfied;
(viii) (A) audited financial statements and unaudited quarterly financial statements (including, without limitation, income statements, balance sheets and cash flow statements) of the Company and its Subsidiaries, in each case for each of the three fiscal years immediately preceding the Closing Date, (B) unaudited interim financial statements (including, without limitation, an income statement, balance sheet and cash flow statement) for the Company and its Subsidiaries as of June 30, 2016 for such month and for the portion of the fiscal year then elapsed, setting forth in comparative form corresponding figures for the preceding fiscal year, and (BC) that there has been no event or circumstance since the date financial projections of the Audited Financial Statements that has had or could be reasonably expected to haveCompany and its Subsidiaries for the next five (5) fiscal years (including, either individually or in without limitation, quarterly projected financial statements for the aggregate, a Material Adverse Effecttwelve calendar months following the Closing Date);
(ix) UCC searchesa certificate signed by the principal financial officer of the Borrower Agent certifying that, as of a period ending reasonably satisfactory after giving effect to the Administrative Agententering into of the Loan Documents and the consummation of all of the Transactions, listing all effective financing statements which name (A) each Borrower is Solvent and (B) the Borrower or any of its Subsidiaries Loan Parties, taken as debtora whole, together with copies of such financing statements requested by the Administrative Agentare Solvent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections an initial Borrowing Base Certificate;
(xii) initial written notice of Borrowing;
(xiii) delivery of Uniform Commercial Code financing statements, suitable in form and substance for a period of four Fiscal Years after filing in all places required by applicable law to perfect the Closing Date prepared by management Liens of the BorrowerAdministrative Agent under the Security Instruments as a Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, including Uniform Commercial Code financing statements covering, inter alia, As-extracted collateral for filing in each county in which any Loan Party owns or leases any real property, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable law to perfect the Liens of the Administrative Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Administrative Agent may require subject to the Intercreditor Agreement;
(xiv) Uniform Commercial Code search results showing only those Liens as are acceptable to the Administrative Agent and Lenders;
(xv) evidence of the payment in full and termination of the Existing Agreement, including terminations of Uniform Commercial Code financing statements filed in connection therewith and other evidence of lien releases and other related matters on terms acceptable to the Administrative Agent;
(xvi) copies of the Senior Notes Documents, all certified as true and correct by the Borrower Agent;
(xvii) evidence that the Senior Notes Agent has received the originals of any pledged Collateral representing all of the issued and outstanding Equity Interests constituting Collateral under the Loan Documents, in form each case together with original stock powers (or the equivalent) duly executed in blank with respect thereto;
(xviii) all documentation and other information required by Law relating to “know your customer” and anti-money laundering rules and regulations, including, without limitation, the United States Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), and requested by any Lender in writing at least one Business Day prior to the anticipated Closing Date;
(xix) an updated desktop Inventory appraisal with results satisfactory to the Administrative Agent;
(xx) executed counterparts of the Intercreditor Agreement; and
(xiixxi) such other assurances, certificates, documents, consents or opinions as executed counterparts of the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may requirePost-Closing Agreement.
(b) Satisfactory completion by the Administrative Agent of due diligence with respect to each Loan Party, including, without limitation, receipt of, and satisfaction with, the Administrative Agent’s third party due diligence, including, without limitation, a third party due diligence report including a quality of earnings report, collateral audit, inventory appraisal, management background checks, and an insurance review, in each case, conducted by a Person acceptable to the Administrative Agent.
(c) The fee set forth terms and conditions of the Senior Notes Documents and all documents executed in connection therewith shall be satisfactory to the Administrative Agent and not require any payment of principal in respect of the Senior Notes on the Closing Date.
(d) There shall have been no material adverse change in the invitation letter business, financial condition, operations or properties of the Borrower Company or any of its Subsidiaries, taken as a whole, from that reflected in the most recent fiscal year-end audited financial statements; provided, that in no event shall any adverse change in such business or financial condition which is known to each Lender the Administrative Agent and any other which has occurred on or prior to July 26, 2016 constitute a material adverse change.
(e) Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(cf) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all Attorney Costs reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of Section 9.0410.04, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent 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 facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to 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 require evidencing the identity, authority and capacity 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;
(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 Nevada and Texas;
(vi) a favorable opinion of Xxxxxx and Xxxxx, LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by 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, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agentstatements;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four five Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters Letter shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30October 31, 20112006.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in Simultaneously with the Existing Credit initial Loan under this Agreement) owing to each Lender (as such term is defined in , the Existing Credit Agreement) financial institutions under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to Agreement shall be transferred and deemed issued paid all amounts owing them under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they Agreement shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effectbe concurrently terminated. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Gruma Sa De Cv)
Conditions of Initial Credit Extension. The obligation obligations of each Lender the Lenders and L/C Issuers to make its their initial Credit Extension Extensions hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning 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 Guaranties, the Pledge Agreement, the Security Agreement, the Interco Subordination Agreement and the Intercreditor Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentNotes;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Document Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Document Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Document Party is duly organized or formed, and that the Borrower each Loan Document Party is validly existing, in good standing and qualified to engage in business in Nevada and Texasbusiness;
(viv) a except as otherwise specified in Section 6.15, favorable opinion opinions of Xxxxxx and Xxxxx, LLP, counsel to the BorrowerLoan Document Parties, addressed to the Administrative Agent Agent, each L/C Issuer and each Lender, as to the matters set forth in Exhibit P and such other matters concerning the Borrower Loan Document Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Document Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Document Party and the validity against the Borrower such Loan Document 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 Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Company most recently ended prior to the Closing Date, signed by a Responsible Officer of the Company;
(ix) UCC searchesexcept as otherwise specified in Section 6.15, as of a period ending reasonably evidence satisfactory to the Administrative Agent that the Liens granted to the Collateral Agent for the benefit of the Lenders in the collateral described in the Pledge Agreement and the Security Agreement are perfected security interests (except that with respect to the pledge of any Capital Stock of First Tier non-U.S. Subsidiaries, perfected to the extent that the Uniform Commercial Code in the relevant jurisdiction is applicable) in each case subject to nonconsensual Permitted Liens; and no Lien (other than nonconsensual Permitted Liens) exists on any such collateral described above other than the Lien created in favor of the Collateral Agent, listing all effective financing statements which name for the Borrower or any benefit of its Subsidiaries as debtorthe Lenders, together with copies of such financing statements requested by pursuant to the Administrative AgentLoan Documents;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after evidence that all amounts owing under the Existing Credit Agreement have been or concurrently with the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agentare being paid; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C IssuerIssuers, or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower Company shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Company and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30August 31, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect2004. 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 and L/C Issuer 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 or L/C Issuer unless the Administrative Agent shall have received notice from such Lender or L/C Issuer prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Solectron 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this AgreementAgreement and all other Loan Documents, as applicable, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentNotes;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that each of the Borrower Company and each other Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 and Xxxxx, Xxxxx & Xxxxxxx LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel may reasonably requestbe requested;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(xviii) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xiix) financial projections for a period receipt by the Administrative Agent of four Fiscal Years after the Closing Date prepared by management satisfactory results of recent lien and other searches required in each of the Borrowerjurisdictions where the Borrowers are located (within the meaning of Section 9-307 of the Uniform Commercial Code in effect on the date hereof in the State of Delaware or the Commonwealth of Pennsylvania, in form satisfactory to or the corresponding code or statute of any other applicable jurisdiction) and such other locations as reasonably required by the Administrative Agent; and;
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders Swing Line Lender reasonably may require.; and
(bxi) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(cb) Unless waived by the Administrative Agent, the Borrower Company shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date), plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Company and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 to make its initial Credit Extension hereunder is subject to satisfaction or waiver of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning 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 its legal counsel and each of the Lenders:
(i) executed counterparts of this Agreement, the Parent Guaranty and the Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrowers;
(ii) Revolving Loan Notes a Note executed by the applicable Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the each Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in Nevada each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect, including, certified copies of each Borrower’s Organization Documents, certificates of good standing and/or qualification to engage in business and Texastax clearance certificates;
(viv) a favorable opinion of Xxxxxx and Xxxxx, Xxxxxx Xxxxxxxx LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that that, except as disclosed in any filings made with the SEC, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(xviii) evidence that all insurance required to be maintained pursuant to Section 6.04 the Existing Credit Agreement has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after or concurrently with the Closing Date prepared by management of is being terminated and all Liens, if any, securing obligations under the Borrower, in form satisfactory to Existing Credit Agreement have been or concurrently with the Administrative AgentClosing Date are being released; and
(xiiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender Any fees and any other fees expenses required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower The Company shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Company and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed redeem 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower and executed counterparts of each Security Document listed in the Security Schedule, sufficient in number for distribution to Administrative Agent and Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the 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 the Borrower such Loan Party is a party or is to be a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 Xxxxxx and Xxxxx, LLP, counsel to the Borrower, Loan Parties addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower Loan Parties and the Loan Documents as Administrative Agent may reasonably request, in form and substance satisfactory to Administrative Agent;
(vi) a favorable opinion of local counsel to the Loan Parties in the states of Louisiana and Texas, addressed to Administrative Agent and its counsel each Lender, as to such matters concerning the Loan Parties and the Loan Documents as Administrative Agent may reasonably request, in form and substance satisfactory to Administrative Agent;
(vii) a certificate of a Responsible Closing Certificate and Initial Compliance Certificate, signed by the Chief Financial Officer of the Borrower either (A) attaching copies of all consentsBorrower, licenses and approvals 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, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) the calculation demonstrating that the Consolidated Leverage Ratio for the Measurement Period ended December 31, 2006 on a pro forma basis after giving effect to the Permitted Transactions and the offering of the Senior Notes does not exceed 2.0 to 1.0, and (D) to the Solvency of each Loan Party, which certificate shall also include a duly completed Compliance Certificate as of December 31, 2006;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(xviii) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xiix) financial projections for a period of four Fiscal Years after evidence that all commitments under the Fifth Amended and Restated Credit Agreement dated June 2, 2006 among Borrower, JPMorgan Chase Bank, N.A., as administrative agent and the other agents and lenders party thereto (the “Existing Credit Agreement”) have been or concurrently with the Closing Date are being terminated, and all outstanding obligations thereunder paid in full and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(x) title review satisfactory to Administrative Agent with respect to Borrower’s oil and gas reserves representing 75% of PV;
(xi) annual business plan and budget of Borrower and its Subsidiaries on a consolidated basis, including forecasts prepared by management of the Borrower, in form satisfactory to the Administrative Agent, of consolidated balance sheets and statements of income or operations and cash flows of Borrower and its Subsidiaries on a monthly basis for the balance of 2007; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Issuer or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of the counsel to Administrative Agent (directly to such counsel counsel, if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30April 23, 20112007.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in received gross proceeds of $450,000,000 from the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect incurrence of the Existing Letters indebtedness of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in Borrower evidenced by the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full Senior Notes on or prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effectClosing Date. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the 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 Nevada and Texaseach 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 each of the Loan Parties’ corporate, regulatory and Xxxxx, LLP, counsel to the Borrowerapplicable local counsel, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to such matters concerning the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably requestAgent;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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;
(ixviii) UCC searches, a duly completed Compliance Certificate as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name last day of the fiscal quarter of the Borrower or any ended on June 30, 2012, signed by a Responsible Officer of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentBorrower;
(xix) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Issuer or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 (Gas Natural 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a Swing Line Note executed counterparts of the affirmation and consent, in form and substance reasonably satisfactory to the Administrative Agent, duly executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimiteach Loan Party;
(iv) completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in any jurisdictions requested by the Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the such Borrower is a party or is to be a party;
(vvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that the each Borrower is duly organized or formedformed or incorporated, as the case may be, and that the Borrower is validly existing, existing and in good standing and qualified under the laws of the jurisdiction of its organization (to engage the extent that such concept exists in business in Nevada and Texassuch jurisdiction);
(vivii) a favorable opinion of Xxxxxx and Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, special counsel to the BorrowerCompany, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(viii) a favorable opinion of the General Counsel of the Company, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(ix) a favorable opinion of Xxxxx Xxxxx LLP, special counsel to the Administrative Agent and the Arrangers, addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower and enforceability of the Loan Documents as the Administrative Agent and its counsel may reasonably requestunder New York law;
(viix) a certificate of a Responsible Officer of the Borrower Company, on behalf of each Loan Party, either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower each Loan Party and the validity against the 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 Company, on behalf of each Loan Party, certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements October 31, 2011 that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) the absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Company, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect;
(ixxii) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agentextent not previously delivered, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections for a period , together with the certificates of four Fiscal Years after the Closing Date prepared by management of the Borrowerinsurance, in form satisfactory to 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 constitutes Collateral; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, any Swing Line Lender or the Required Lenders any Lender reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender (i) All accrued, reasonable fees and any other fees expenses required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date (including the reasonable fees and expenses of counsel (including any legal counsel) for the Administrative Agent) shall have been paid and (ii) all accrued, reasonable fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower Company shall have paid all Attorney Costs reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Company and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 (Greif Inc)
Conditions of Initial Credit Extension. The obligation obligations of each Lender the Lenders and L/C Issuers to make its their initial Credit Extension Extensions hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning 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 Guaranties, the Pledge Agreement, the Security Agreement, the Interco Subordination Agreement and the Intercreditor Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentNotes;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Document Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Document Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Document Party is duly organized or formed, and that the Borrower each Loan Document Party is validly existing, in good standing and qualified to engage in business in Nevada and Texasbusiness;
(viv) a except as otherwise specified in Section 6.15, favorable opinion opinions of Xxxxxx and Xxxxx, LLP, counsel to the BorrowerLoan Document Parties, addressed to the Administrative Agent Agent, each L/C Issuer and each Lender, as to the matters set forth in Exhibit O and such other matters concerning the Borrower Loan Document Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Document Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Document Party and the validity against the Borrower such Loan Document 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 Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Company most recently ended prior to the Closing Date, signed by a Responsible Officer of the Company;
(ix) UCC searchesexcept as otherwise specified in Section 6.15, as of a period ending reasonably evidence satisfactory to the Administrative Agent that the Liens granted to the Collateral Agent for the benefit of the Lenders in the collateral described in the Pledge Agreement and the Security Agreement are perfected security interests (except that with respect to the pledge of any Capital Stock of First Tier non-U.S. Subsidiaries, perfected to the extent that the Uniform Commercial Code in the relevant jurisdiction is applicable) in each case subject to nonconsensual Permitted Liens; and no Lien (other than nonconsensual Permitted Liens) exists on any such collateral described above other than the Lien created in favor of the Collateral Agent, listing all effective financing statements which name for the Borrower or any benefit of its Subsidiaries as debtorthe Lenders, together with copies of such financing statements requested by pursuant to the Administrative AgentLoan Documents;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after evidence that all amounts owing under the Existing Credit Agreement have been or concurrently with the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agentare being paid; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C IssuerIssuers, or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower Company shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Company and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30August 31, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect2006. 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 and L/C Issuer 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 or L/C Issuer unless the Administrative Agent shall have received notice from such Lender or L/C Issuer prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Solectron 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to 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 require evidencing the identity, authority and capacity 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;
(viv) 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 Nevada Delaware and Texas;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; Table of Contents
(viv) a favorable opinion of Xxxxxx and XxxxxXxxxx X. Xxxxxxx, LLPEsq., counsel Assistant General Counsel to the BorrowerBorrower and its Subsidiaries, 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 as the Administrative Agent and its counsel Required Lenders may reasonably request;
(vi) an opinion of Xxxxx Mulliss & Wicker, PLLC, special counsel for the Administrative Agent, substantially in the form of Exhibit F;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by 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, and (B) that there has been no event or circumstance since the date of the Audited Interim Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Existing Credit Agreement has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after or concurrently with the Closing Date prepared by management of the Borrower, is being terminated and all obligations thereunder have been satisfied in form satisfactory to the Administrative Agentfull; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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
Samples: Credit Agreement (Temple Inland Inc)
Conditions of Initial Credit Extension. The obligation of each Lender and the Letter of Credit Issuer to make its any initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall following items (except those items that are expressly permitted to be originals or facsimiles (followed promptly by originals) unless otherwise specifieddelivered after the Closing Date pursuant to the Post-Closing Agreement), each properly executed by a Responsible Officer of the Borrowerapplicable Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Agreement and each of the Administrative Agent, each Lender and the BorrowerSecurity Instruments;
(ii) Revolving Credit Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Credit Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a Swing Line Note executed by the Borrower in favor Secretary’s certificate for each Loan Party certifying as to (A) true and complete copies of all Organizational Documents of such Loan Party attached thereto, (B) resolutions of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates Board of resolutions Directors or other actionorganizational action authorizing execution, delivery and performance of all Loan Documents to which such Loan Party is a party, and (C), incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may require officers (including specimen signatures) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications certification from any applicable Governmental Authority as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada its jurisdiction of organization and Texasin any other jurisdiction in which the failure to be so qualified could reasonably be expected to have a Material Adverse Effect, including certificates of good standing and qualification to engage in business in each applicable jurisdiction;
(viv) a favorable opinion of Xxxxxx and Xxxxx, LLPXxXxxx & Xxxx, counsel to the BorrowerLoan Parties, and acceptable Canadian and New York counsel to the Loan Parties, each addressed to the Administrative Agent and each LenderLender and their successors and assigns, as to such the matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
(viivi) a certificate certificates of a Responsible Officer Officers of the Borrower Agent or the applicable Loan Parties either (A) attaching copies of identifying all consents, licenses and approvals required in connection with the execution, delivery and performance by the each Borrower and the validity against the Borrower each such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, and attaching true and correct copies thereof or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower Agent certifying (A) that the conditions specified in Sections 4.02(a5.02(a) and (b5.02(b) have been satisfied, satisfied and (B) that there has been no event or circumstance since as to the date matters described in Section 5.01(d);
(viii) (A) audited financial statements of the Audited Financial Statements that has had or could be reasonably expected to haveCompany and its Subsidiaries for each of the three (3) fiscal years immediately preceding the Closing Date, either individually or in (B) unaudited interim financial statements for the aggregateCompany and its Subsidiaries as of July 31, a Material Adverse Effect2021, and (C) financial projections of the Company and its Subsidiaries for the next two (2) fiscal years;
(ix) UCC searchesa certificate signed by the Chief Financial Officer or the Chief Accounting Officer of the Borrower Agent certifying that, as of a period ending reasonably satisfactory after giving effect to the Administrative Agententering into of the Loan Documents and the consummation of all of the Transactions, listing all effective financing statements which name (A) each Borrower is Solvent and (B) the Borrower or any of its Subsidiaries Loan Parties, taken as debtora whole, together with copies of such financing statements requested by the Administrative Agentare Solvent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections an initial Borrowing Base Certificate;
(xii) initial written notice of Borrowing;
(xiii) delivery of UCC and PPSA financing statements, suitable in form and substance for a period of four Fiscal Years after filing in all places required by applicable law to perfect the Closing Date prepared by management Liens of the BorrowerAdministrative Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable law to perfect the Liens of the Administrative Agent under such Security Instruments as a first priority Lien in form and to such other Collateral as the Administrative Agent may require;
(xiv) UCC and PPSA search results showing only those Liens as are acceptable to the Administrative Agent and Xxxxxxx;
(xv) evidence of the payment in full and cancellation of the Existing Agreement, including terminations of UCC and PPSA financing statements filed in connection with the Existing Agreement and other evidence of lien releases and other related matters on terms acceptable to the Administrative Agent;
(xvi) evidence satisfactory to the Administrative AgentAgent of the consummation (in compliance with all applicable laws and regulations, with the receipt of all material governmental, shareholder and third party consents and approvals relating thereto) of the Transactions;
(xvii) completion of a Field Exam, asset appraisal, insurance review and legal review; and
(xiixviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Letter of Credit Issuer, the Swing Line Lender or the Required Lenders may reasonably may require.
(b) The fee set forth At least five days prior to the Closing Date, (i) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower and (ii) so long as requested by the invitation letter of Administrative Agent or any Lender at least ten days prior to the Borrower Closing Date, Borrowers shall have provided to Administrative Agent and each Lender requesting Xxxxxx the documentation and any other information so requested in connection with applicable “know your customer” and Anti-Money Laundering Laws or Anti-Corruption Laws, including the PATRIOT Act.
(c) Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(cd) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all Attorney Costs reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower Administrative Agent shall have delivered written confirmation be satisfied that all Obligations after giving effect to (as such term defined in i) the Existing initial Credit AgreementExtension hereunder, (ii) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect consummation of the Existing Letters Transactions and payment of Creditall fees and expenses in connection therewith and (iii) any payables stretched beyond their customary payment practices, which are going to (x) Availability shall be transferred at least $25,000,000 and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in y) the Existing Credit Agreement) pursuant to the terms sum of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they Availability plus Eligible Cash shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effectbe at least $60,000,000. Without limiting the generality of the provisions of Section 9.0410.04, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 (Matrix Service Co)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Company Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentNotes;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers or of the Borrower Secretary or Assistant Secretary of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower Company is validly existing, in good standing and qualified to engage in business in Nevada under the laws of Delaware and TexasCalifornia;
(viv) a favorable opinion of Xxxxxx and Xxxxx, Xxxxxxx XxXxxxxxx LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit K and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer or of the Borrower Secretary or Assistant Secretary of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 or of the Borrower Secretary or Assistant Secretary of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ixviii) UCC searches, a duly completed Compliance Certificate as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management last day of the Borrowerfiscal quarter of the Company ended on December 1, in form satisfactory to 2006, signed by a Responsible Officer of the Administrative AgentCompany; and
(xiiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower Company shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Company and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30March 16, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect2007. 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 (Adobe Systems Inc)
Conditions of Initial Credit Extension. The obligation obligations of each Lender to make its initial Credit Extension hereunder is are subject to satisfaction or waiver of each of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the date hereof or (as applicable) the 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, the Guaranty Agreement, the Pledge Agreement, the Security Agreement and the Intellectual Property Security Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerPrincipal Companies;
(ii) a Term Note and a Revolving Loan Notes Credit Note executed by the Borrower in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentNotes;
(iii) a Swing Line Note executed by with respect to each of the Deposit Accounts identified in Section 4.1(a)(ii) of the Disclosure Schedule as an operating account of the Borrower or the Parent Company with Citizens Bank of Massachusetts, an account control agreement with respect to each such operating account in favor of the Swing Line Lender, in a principal amount equal form and substance reasonably satisfactory to the Swing Line SublimitAdministrative Agent, all as provided by Section 6.14;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 legal opinion of Xxxxxx and Xxxxx, LLP, one or more special counsel to each of the BorrowerPrincipal Companies, addressed to the Administrative Agent and each Lenderof the Lenders, as to such the matters set forth in Exhibit M concerning the Borrower Loan Parties and the Loan Documents as and in form and substance reasonably satisfactory to the Administrative Agent and its counsel may reasonably requestAgent;
(vii) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 each of the Borrower Principal Companies 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 Historical Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xiiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders Agent may reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other fees All Fees required to be paid on or before the Closing Date in accordance with the terms of the Agent Fee Letter shall have been paid, and paid to the Fee Letters shall be Administrative Agent in full force and effectfull.
(c) Unless The Administrative Agent shall have received evidence reasonably satisfactory to the Administrative Agent that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(d) Each of the following conditions precedent shall be satisfied with respect to the WL Acquisition, the WL Equity Investments, and the WL Employment Agreements:
(i) there shall have been delivered to the Administrative Agent true, correct and complete copies of each of the WL Transaction Documents; all of the material terms and conditions of the WL Transaction Documents shall in all material respects be the same as and consistent with the terms and conditions contained in the draft form of such documents delivered to the Administrative Agent on or about March 7, 2006; and no material provisions of any of the WL Transaction Documents shall have been modified or waived in any respect reasonably determined by the Administrative AgentAgent to be material, in each case, without the Borrower shall have paid all Attorney Costs prior consent of the Administrative Agent (directly which consent shall not be unreasonably withheld or delayed);
(ii) simultaneously with the making of the initial Credit Extensions on the Closing Date, the WL Acquisition shall be closed in all material respects in accordance with the WL Acquisition Documents and Applicable Law, and all material conditions precedent to such counsel if requested by the closing of the WL Acquisition, as set forth in the WL Acquisition Documents, shall be satisfied (and not waived in any material respect, except with the prior consent of the Administrative Agent) to the reasonable satisfaction of the Administrative Agent;
(iii) simultaneously with the making of the initial Credit Extensions on the Closing Date, the WL Equity Investments shall be made in all material respects in accordance with the WL Investment Documents and Applicable Law, and all material conditions precedent to the making of the WL Equity Investments, as set forth in the WL Investment Documents, shall be satisfied (and not waived in any material respect, except with the prior consent of the Administrative Agent) to the reasonable satisfaction of the Administrative Agent;
(iv) the Borrower shall have received from the Parent Company, upon the terms contained in the WL Investment Documents, cash proceeds of the WL Equity Investment in an aggregate amount not less than $10,400,000;
(v) each of Mxxxxx and the Principal Companies shall have executed and delivered the Mxxxxx Employment Agreement;
(vi) each of Wxxxx and the Principal Companies shall have executed and delivered the Wxxxx Employment Agreement; and
(vii) there shall have been delivered to the Administrative Agent and each Lender true, correct and complete copies of resolutions adopted by the Board of Directors of the Parent Company effective as of, and subject to, the WL Closing (A) increasing the number of members of the Board of Directors of the Parent Company from seven (7) to nine (9), and (B) approving the appointment of each of Mxxxxx and Wxxxx to fill the two vacancies on the Board of Directors of the Parent Company, and each of Mxxxxx and Wxxxx shall be members of the Board of Directors of the Parent Company effective as of the WL Closing.
(e) The cash proceeds of the WL Equity Investment and the Loans made on the Closing Date shall, simultaneously with the making of the Loans on the Closing Date, be applied by the Borrower towards (i) payment of the purchase price of the WL Business and the WL Assets, (ii) payment in full of the entire outstanding amount of the Existing Assumed Indebtedness, and (iii) the payment of transaction costs relating to each of the foregoing.
(f) There shall have been delivered to the Administrative Agent copies of each of the Real Property Leases assumed by the Borrower in connection with the WL Acquisition.
(g) The Administrative Agent shall have received a duly completed Closing Date Compliance Certificate, reasonably satisfactory in form and substance to the Administrative Agent, signed by a Responsible Officer of each of the Principal Companies, and showing to the reasonable satisfaction of the Administrative Agent that, after giving pro forma effect to the completion of the WL Acquisition, the WL Equity Investment and the other WL Transactions upon the terms contained in the WL Transaction Documents and the making of the Loans on the Closing Date:
(i) the Consolidated EBITDA of the WL Seller, determined on a pro forma basis for the period of twelve (12) consecutive months ended January 31, 2006, shall not be less than $4,500,000;
(ii) the ratio of the Consolidated Total Debt of the Borrower and its Subsidiaries as at the Closing Date to the Consolidated EBITDA of the WL Seller and its Subsidiaries, determined on a pro forma basis for the period of twelve (12) consecutive months ended January 31, 2006, shall not exceed 2.90:1.00;
(iii) arrangements reasonably satisfactory to the Administrative Agent shall have been made for the payment in full of the Existing Assumed Indebtedness and the termination of all of the Liens on WL Assets securing the Existing Assumed Indebtedness, such payment and such termination to be completed immediately after the making of Loans on the Closing Date; and
(iv) the aggregate amount of all unrestricted cash and cash equivalents owned by the Parent Company on a stand-alone basis on the Closing Date, determined after giving effect to the WL Transactions, including the WL Equity Investment made by the Parent Company in the Borrower, shall not be less than $2,900,000. For purposes of clause (i) and clause (ii) of this paragraph (g), the Consolidated EBITDA of the WL Seller for each of the monthly accounting periods from February 1, 2005 through the Closing Date shall be adjusted by also adding to Consolidated Net Income of the WL Seller for each of such monthly accounting periods, but only to the extent reflected as a charge in the statement of such Consolidated Net Income for each such period (and without duplication of any of the items of cost and expense already added to Consolidated Net Income in accordance with the definition of “Consolidated EBITDA”), certain non-going forward expense items in the maximum permissible amount identified by the Principal Companies for each of such monthly accounting periods and approved by the Administrative Agent. The maximum permissible amount of each of such non-going forward expense items identified by the Principal Companies for each of such monthly accounting periods and approved by the Administrative Agent is specified in Section 4.1 of the Disclosure Schedule (collectively, “Permitted EBITDA Addback Adjustments”).
(h) The Total Outstandings on and as of the Closing Date, determined after giving pro forma effect to all of the Loans made or to be made hereunder on the Closing Date, shall not exceed $13,000,000.
(i) The Administrative Agent shall have received forecasts prepared by the senior management of the Principal Companies, in form and detail reasonably satisfactory to the Administrative Agent, of consolidated balance sheets and statements of income or operations and cash flows of the Parent Company, the Borrower and the Subsidiary Guarantors for each Fiscal Year from 2006 through and including 2011, such forecasts to be on a Fiscal Quarter-basis through December 31, 2006.
(j) The Principal Companies shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced in customary detail prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 Principal Companies and the Administrative Agent).
(dk) The Closing Date shall have occurred on or before June 30May 31, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect2006. Without limiting the generality of the provisions of Section 9.049.4, for purposes of determining compliance with the conditions specified in this Section 4.014.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each Instrument or document or other matter required thereunder hereunder to be consented to or approved by or acceptable or satisfactory to a Lender Lender, unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its such Lender’s objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The effectiveness of this Agreement, the amendment and restatement of the Existing Credit Agreement and the obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is are all subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that each of the Borrower and Guarantors is validly existing, in good standing and qualified to engage in business in Nevada its state of organization and Texaseach 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 and Xxxxx, LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to and covering such matters concerning relating to the Borrower and Loan Parties, the Loan Documents and the transactions contemplated therein as the Administrative Agent and its counsel or the Required Lenders may reasonably request; provided, however, that opinions with respect to Subsidiary Guarantors that are not organized in the States of Delaware, Maryland and Michigan (other than enforceability opinions with respect to any Loan Document to which such Subsidiary Guarantors is a party which will not be from the jurisdiction of formation unless otherwise requested below), will be required only if requested by the Administrative Agent, in its sole discretion, with the understanding that enforceability opinions will be required with respect to any Loan Document to which such Subsidiary Guarantors is a party, which if the Administrative Agent has not requested other opinions in addition to enforceability, may be subject to necessary assumptions to avoid the requirement of having opinions from the jurisdiction of formation of such Subsidiary Guarantors;
(viivi) a certificate of a Responsible Officer of the Borrower Parent either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower each Loan Party and the validity against the Borrower each Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower Parent certifying (A) that the conditions specified in Sections 4.02(a5.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2020 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on September 30, 2021, signed by a Responsible Officer of the Borrower;
(ix) UCC searches, a duly completed Unencumbered Pool Report calculated as of September 30, 2021, signed by a period ending reasonably satisfactory to Responsible Officer of the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentBorrower;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained an executed Certificate of Beneficial Ownership and is such other documentation and other information requested in effect;
(xi) financial projections for a period of four Fiscal Years after connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative AgentUSA Patriot Act; and
(xiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C IssuerIssuers, the Swing Line Lenders or the Required Lenders reasonably may require.
(b) The fee set forth absence of any action, suit, investigation or proceeding pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or governmental authority related to the invitation letter of the Borrower Loan that could reasonably be expected to each Lender and any other have a Material Adverse Effect.
(c) Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(cd) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement, all Collateral Documents and each Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 Xxxxxx and Xxxxx, LLP, counsel to the Borrower, Loan Parties acceptable to Administrative Agent addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit E and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel may reasonably requestrequest and in form and substance satisfactory to Administrative Agent;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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(a5.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements September 30, 2013 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(xviii) evidence that all insurance required to be maintained pursuant to by Section 6.04 7.07 hereof has been obtained and is in effect;
(ix) an affidavit in the form of Exhibit F attached hereto (the "Affidavit of Payment of Trade Bills") containing the information as provided therein;
(x) certificates (whether one or more, the "Property Certificates") for each producing oil and gas lease, well or unit, as appropriate, relating to the oil and gas properties described in an Oil and Gas Mortgage, which Property Certificates shall be in the form of Exhibit G attached hereto containing the information as provided therein;
(xi) financial projections title opinions and/or other title information and data acceptable to Administrative Agent covering not less than 80% of Recognized Value of all oil and gas properties evaluated in the most recent Reserve Report, reflecting title to the Mineral Interests of the Loan Parties in such oil and gas properties which is acceptable to Administrative Agent, and these title assurances shall include a title indemnity from Borrower (the "Title Indemnity Agreement");
(xii) engineering report and other reserve information covering the oil and gas properties of the Loan Parties, including a Reserve Report acceptable to Administrative Agent prepared by one or more Approved Petroleum Engineers, and such other reports and due diligence materials as Administrative Agent and Lenders may reasonably request;
(xiii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of Borrower most recently ended prior to the Closing Date, signed by a Responsible Officer of Borrower;
(xiv) such environmental information regarding the Mortgaged Properties as Administrative Agent may request;
(xv) a schedule of Swap Contracts then in force and effect;
(xvi) Uniform Commercial Code, judgment and tax lien searches in such jurisdictions as may be reasonably required by Administrative Agent evidencing the absence of Liens except for a period of four Fiscal Years after Liens being released on the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agentand Permitted Liens; and
(xiixvii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Issuer or the Required Lenders may reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless including, unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of the counsel to Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(dc) The Closing Date shall have occurred on or before June 30January 31, 20112014.
(ed) The Borrower There shall not have delivered written confirmation that all Obligations (as such term defined occurred any material disruption or material adverse change in the Existing Credit Agreement) owing financial, banking, or capital markets which Administrative Agent reasonably deems to each Lender (as such term is defined in materially impair the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding syndication of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effectcredit facility. Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentNotes;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that each of the Borrower Company and Avnet Japan is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 Xxxxxx and XxxxxSquire, LLPXxxxxxx & Xxxxxxx L.L.P., counsel to the BorrowerLoan Parties, and of the General Counsel of the Company, each addressed to the Administrative Agent and each Lender, as to such matters concerning in substantially the Borrower forms of Exhibits I-1 and the Loan Documents as the Administrative Agent and its counsel may reasonably requestI-2, respectively;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(ixviii) UCC searchesa certificate signed by a Responsible Officer of the Company, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence certifying that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xiix) financial projections for evidence that the Amended and Restated Credit Agreement dated as of October 13, 2005 among the Company, Avnet Logistics U.S., L.P., a period Texas limited partnership, the other designated borrowers from time to time party thereto, the lenders from time to time party thereto, and Bank of four Fiscal Years after America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender has been or concurrently with the Closing Date prepared by management of the Borroweris being terminated and any loans outstanding thereunder repaid in full, in form satisfactory to the Administrative Agenttogether with all accrued interest and fees thereunder; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Agent or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by The Company shall have paid all reasonable fees and disbursements of Xxxxx Mulliss & Wicker, PLLC, as counsel to the Administrative Agent, and of special and local counsel to the Borrower shall have paid all Attorney Costs of Lenders retained by the Administrative Agent (directly with respect to such counsel if requested by the Administrative Agent) any Foreign Obligors, in each case to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings Date (provided that the Company shall remain liable for any additional reasonable fees and expenses of such estimate shall not thereafter preclude a final settling of accounts between the Borrower and counsel to the Administrative AgentAgent in accordance with Section 10.04).
(d) The Closing Date shall have occurred on or before June 30October 31, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect2007. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 (Avnet 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles electronically transmitted copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrower Agent;
(ii) Revolving Loan Notes a Note executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a Swing Line Note executed by the Borrower in favor counterparts of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimiteach other Loan Document;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(v) such documents and certifications as of a recent date as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 Xxxxxx and XxxxxJones, LLPWalker, Waechter, Poitevent, Carrère & Xxxxxxx L.L.P., counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to such matters concerning the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably requestAgent;
(vii) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 Agent certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as of a period ending reasonably satisfactory certificate attesting to the Administrative AgentSolvency of the Loan Parties, listing all effective financing statements which name taken as a whole, before and after giving effect to the extension of Loans hereunder, from the chief financial officer of the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence all commitments of lenders under the Prior Credit Agreement that are not parties to this Agreement shall have been terminated and all insurance required commitments thereunder of each Lender that is a party to this Agreement shall be maintained pursuant to Section 6.04 has been obtained and is in effect;evidenced only by this Agreement. and
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders any Lender reasonably may require.
(bi) The fee set forth in the invitation letter of the Borrower to each Lender and any other All fees required to be paid to the Administrative Agent and BAS 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, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower The Borrowers shall have paid all Attorney Costs reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30July 31, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect2009. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 (Tidewater Inc)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrowers;
(ii) a Revolving Loan Notes Note executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a the Swing Line Note executed by the Borrower Borrowers in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 Xxxxxx and XxxxxXxxxx Xxxxxxx, LLP, in-house counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by 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, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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
Samples: Credit Agreement (Egl 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 in form and substance satisfactory to the Administrative Agent:
precedent: (a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each each, to the extent signed by a Loan Party, properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that each of the Borrower and the Guarantor is validly existing, in good standing and qualified to engage in business in Nevada Colorado and TexasNevada, respectively;
(viv) a favorable opinion of Xxxxxx and Xxxxx, each of Holme Xxxxxxx & Xxxx LLP, counsel to the BorrowerLoan Parties, and internal counsel to the Loan Parties, in each case addressed to the Administrative Agent and each Lender, as to such matters concerning Lender and substantially in the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably requestform set forth in Exhibit F;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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;
(ixviii) UCC searches, a duly completed Compliance Certificate as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name last day of the fiscal quarter of the Borrower or any ended June 25, 2004, signed by a Responsible Officer of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentBorrower;
(xix) evidence that all insurance required to be maintained pursuant to Section 6.04 the Existing Credit Agreement has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after or concurrently with the Closing Date prepared by management of is being terminated and all Liens securing obligations under the Borrower, in form satisfactory to Existing Credit Agreement have been or concurrently with the Administrative AgentClosing Date are being released; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Issuer or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning 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, each of the Security Instruments, the Subsidiary Guaranty and the Mid-State Homes Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes executed by the Borrower in favor of each Revolving Lender requesting such a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a Swing Line Note Term Loan Notes executed by the Borrower in favor of the Swing Line Lender, in each Term Loan Lender requesting such a principal amount equal to the Swing Line SublimitNote;
(iv) such certificates of resolutions or other action, incumbency certificates (including specimen signatures), and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the 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 Nevada (A) its jurisdiction of formation and Texas(B) in Alabama if the Borrower or such Loan Party is formed in a jurisdiction other than Alabama but has assets or operations in Alabama, including in each such case certified copies of each Loan Party’s Organization Documents, shareholders’ agreements, certificates of good standing and/or qualification to engage in business;
(vi) a favorable opinion of Xxxxxx and Xxxxx, Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the BorrowerLoan Parties, and appropriate local counsel to the Loan Parties, each addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of identifying all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower each Loan Party and the validity against the Borrower each such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, and attaching true and correct copies thereof 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 certifying:
(A) that the conditions specified in Sections 4.02(a5.02(a) and (b) have been satisfied, and ,
(B) as to the matters described in Section 5.01(d);
(C) that none of the Merger Documents (including any condition to consummation of the Merger) has been altered, amended, waived or otherwise changed or supplemented since their execution on June 17, 2005, in any respect materially adverse to the Lenders, except to the extent agreed to by prior written consent of the Arrangers, which consent shall not be unreasonably withheld;
(D) that the Merger has been consummated prior to, or is being consummated substantially simultaneously with, the Closing Date, in accordance with the terms of the Merger Documents (only as amended, altered, waived or otherwise changed in compliance with subpart (D) above);
(E) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or material adverse change in the aggregate, a Material Adverse Effectfacts and information regarding the Loan Parties as represented to date;
(ix) UCC searches, as of a period ending reasonably evidence satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management Arrangers of the Borrowerconsummation, in form satisfactory to the Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on substantially simultaneously with the occurrence of the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate each of Attorney Costs incurred or to be incurred by it through the closing proceedings following, in each case in compliance with all applicable laws and regulations, with the receipt of all necessary material governmental, shareholder and third party consents (provided that such estimate shall not thereafter preclude a final settling including Xxxx-Xxxxx-Xxxxxx clearance) and approvals: (A) the creation of accounts between the Borrower New Holdco and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect transfer of the Existing Letters Equity Interests of CreditUS Pipe and of JW MergerCo thereto, which are going such that after giving effect thereto (but prior to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant giving effect to the terms of the Existing Credit Agreement have been terminated in full prior Merger and to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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.US Pipe
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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the 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 the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 and Xxxxx, each of Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel to the BorrowerLoan Parties, and such local counsel to the Loan Parties as the Administrative Agent may reasonably require, in each case, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G, as applicable, and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 EffectEffect and (C) a calculation of the Consolidated Funded Indebtedness to Capitalization Ratio as of the Closing Date;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(xviii) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xiiA) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter evidence that all outstanding Indebtedness of the Borrower to each Lender and any other fees required to be paid on its Subsidiaries under the Existing Credit Agreement has been or before concurrently with the Closing Date shall is being paid in full, any related credit facilities are terminated and all Liens securing the same have been paid, or concurrently with the Closing Date are being released and the Fee Letters shall be in full force and effect.
(cB) Unless waived a certificate signed by the Administrative Agent, a Responsible Officer of the Borrower certifying that no Default or Event of Default shall have paid all Attorney Costs of exist under the Administrative Agent Existing Credit Agreement (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Datein each case, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agentdefined therein).
(di) The Closing Date Lenders shall have occurred on or before June 30completed a due diligence investigation of the Loan Parties and their respective subsidiaries in scope, 2011.
and with results, satisfactory to the Lender, including, without limitation, environmental due diligence, U.S. Department of Treasury Office of Foreign Assets Control, Foreign Corrupt Practices Act and "know your customer" due diligence and (eii) The Borrower the Loan Parties shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant provided to the terms of Lender the Existing Credit Agreement have been terminated documentation and other information requested by the Lenders in full prior order to comply with applicable Laws including, without limitation, the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 theretoAct.
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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning 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, the Omnibus Amendment and Reaffirmation and, to the extent applicable, any other Collateral Documents, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentNotes;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the 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 Nevada each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) an amendment to the Operating Agreement of the Company amending Sections 3.07(a)(i) and Texas5.01 thereof by replacing each reference to the date “March 31, 2018” contained in such sections with a date that is at least 180 days following the Fifth Anniversary Date;
(vi) a favorable customary opinion of Weil, Gotshal & Xxxxxx and Xxxxx, LLP, counsel to the BorrowerLoan Parties, addressed and, to the extent applicable, an opinion of local counsel, in each case, in form and substance reasonably satisfactory to the Administrative Agent and each Lender, as to such matters concerning the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably requestAgent;
(vii) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity enforcement against the Borrower such Loan Party of the Loan Documents to which it is or is to become a partyparty other than actions in connection with perfection of the security interests granted by Loan Parties pursuant to the Collateral Documents, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Borrower Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and 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 Effectmaterial adverse change in the business, operations, property or financial condition of the Company and its Subsidiaries taken as a whole;
(ix) UCC searches, evidence (A) that all insurance maintained by the Company and in effect as of a period ending reasonably satisfactory to the Closing Date is consistent with the insurance maintained by the Company and its Subsidiaries immediately preceding the Closing Date, and (B) that the Administrative AgentAgent on behalf of the Lenders, listing has been, pursuant to an endorsement, named as an additional insured or loss payee as the case may be, under all effective financing statements which name the Borrower or insurance policies required to be maintained with respect to property of any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentLoan Party constituting Collateral;
(x) evidence that all insurance required a certificate attesting to be maintained pursuant to Section 6.04 has been obtained the Solvency of each Borrower and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the BorrowerCompany and its Subsidiaries, taken as a whole, before and after giving effect to this Agreement and the other Loan Documents, from its chief executive officer or chief financial officer, in form and substance reasonably satisfactory to the Administrative Agent; and
(xi) evidence that the obligations under the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated; and
(xii) such documentary evidence that, as of the Closing Date, no issued and outstanding preferred or other assurances, certificates, documents, consents Equity Interests of the Company shall be required to be redeemed or opinions as permit any right of redemption prior to the Administrative Agent, date which is six months following the L/C Issuer, or the Required Lenders reasonably may requireMaturity Date.
(b) The fee set forth Administrative Agent shall also have received the following:
(i) stock certificates and other Instruments, if any, representing Pledged Collateral (as defined in the invitation letter Pledge Agreement) required to be pledged under the Pledge Agreement by the Company and the applicable Subsidiaries of the Borrower Company; and
(ii) undated stock powers for each of such stock certificates and other Instruments, if any, each duly executed in blank by a Responsible Officer of the pledgor thereof;
(c) Any other action, including the taking of possession of specific Collateral by the Administrative Agent, or evidence reasonably required by the Administrative Agent to each Lender be taken or provided, as the case may be, to create a perfected first priority, subject to Permitted Liens, security interest and Lien in the Collateral required to be provided by the Loan Parties shall have been properly taken or provided, as the case may be, in a manner reasonably satisfactory to the Administrative Agent.
(d) Any accrued, reasonable and documented fees under the Fee Letters and any other fees and expenses of the Administrative Agent, the Arrangers and the Lenders (including the Attorney Costs of Xxxxxxx XxXxxxxxx LLP), in each case, required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each Instrument or 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: Revolving Credit and Term Loan Agreement (Focus Financial Partners Inc.)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer, the Swing Line Lender, and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, Agreement and the Guaranties sufficient in number for distribution to the Administrative Agent, each Lender Lender, and the BorrowerBorrower for each Initial Unencumbered Property;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) copies of the Organization Documents of each Loan Party certified to be true and complete as of a Swing Line Note executed recent date by the Borrower in favor appropriate Governmental Authority of the Swing Line Lenderstate or other jurisdiction of its incorporation or organization, in where applicable, and certified by a principal amount equal Responsible Officer of such Loan Party to be true and correct as of the Swing Line SublimitClosing Date;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 Xxxxxx and Xxxxx, LLPDLA Piper LLP (US), counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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(a5.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, a duly completed Compliance Certificate as of the Closing Date, signed by a period ending reasonably satisfactory to Responsible Officer of the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentBorrower;
(x) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and any Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(xi) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xixii) financial projections for a period of four Fiscal Years after the Closing Date prepared by management Disbursement Instruction Agreement effective as of the Borrower, in form satisfactory to the Administrative AgentAgreement Date; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the Swing Line Lender, the L/C Issuer, Issuers or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany and, if Advance Funding Arrangements shall exist with respect to funding on the Closing Date, executed Advance Funding Documentation in form and number reasonably acceptable to the Administrative Agent;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentNotes;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower Loan Party is validly existing, in good standing and qualified to engage in business in Nevada its jurisdiction formation or incorporation and Texaseach other jurisdiction reasonably requested by the Administrative Agent;
(viv) a favorable opinion of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxxx, Xxxx LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, covering such matters concerning the Borrower and relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent and its the Lenders shall reasonably request and such opinion shall expressly allow permitted successors and assigns of the Administrative Agent and the Lenders to rely on such opinion;
(vi) a favorable opinion of Stek Advocaten B.V., special counsel may to the Administrative Agent, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, covering such matters relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent and the Lenders shall reasonably request;
(vii) a certificate favorable opinion of a Responsible Officer of Xxxxx & XxXxxxxx Amsterdam N.V., counsel to PAREXEL International Holding B.V., addressed to the Borrower either (A) attaching copies of all consentsAdministrative Agent and each Lender, licenses in form and approvals required in connection with substance reasonably satisfactory to the execution, delivery and performance by the Borrower Administrative Agent and the validity against the Borrower of Lenders, covering such matters relating to the Loan Documents to which it is a party, and such consents, licenses the transactions contemplated thereby as the Administrative Agent and approvals the Lenders shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredreasonably request;
(viii) a certificate signed by a Responsible Officer of the Borrower Company 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 havehad, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as certificate of a period ending reasonably satisfactory Financial Officer the Company, certifying that the Company is, and the Company and its Subsidiaries on a consolidated basis are, Solvent both before and after giving effect to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentTransactions;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has the Existing Term Loan Facilities have been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after or substantially concurrently with the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agentare being terminated; and
(xiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders any Lender reasonably may require.
(bi) The fee set forth in the invitation letter of the Borrower to each Lender and any other All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid and the Fee Letters shall be in full force and effect.
(ciii) Unless unless waived by the Administrative Agent, the Borrower Company shall have paid all Attorney Costs reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(dc) The All accrued interest, fees and other charges to the Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect Agreement shall have been paid to the Administrative Agent for the account of the Existing Letters of CreditLenders, which are going to be transferred the L/C Issuer and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each the Swing Line Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, (i) for purposes of determining compliance with the conditions specified in this Section 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 theretothereto and (ii) in the event that Advance Funding Arrangements shall exist, the delivery by any Lender (x) of funds pursuant to such Advance Funding Arrangements (“Advance Funds”) and (y) its signature page to this Agreement shall constitute the request, consent and direction by such Lender to the Administrative Agent (unless expressly revoked by written notice from such Lender received by the Administrative Agent prior to the earlier to occur of funding or the Administrative Agent's declaration that this Agreement is effective) to withdraw and release to the Borrowers on the Closing Date the applicable funds of such Lender to be applied to the funding of Loans by such Lender in accordance with Section 2.02 upon the Administrative Agent's determination (made in accordance with and subject to the terms of this Agreement) that it has received all items expressly required to be delivered to it under this Section 4.01.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation effectiveness of each Lender to make its initial Credit Extension hereunder this Agreement is subject to satisfaction of the following conditions precedent in form and substance satisfactory on or prior to the Administrative AgentClosing Date:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and each other Loan Document, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit[Intentionally Omitted];
(iv) [Intentionally Omitted];
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(vvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 and Xxxxx, LLPDLA Piper LLP (US), counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to such the matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel may reasonably request
(viii) a favorable opinion of Oklahoma local counsel to Crane Equipment & Service, Inc., reasonably acceptable to the Administrative Agent, addressed to the Administrative Agent and each Lender;
(viiix) [Intentionally Omitted];
(x) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements March 31, 2012 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) as to the absence of any action, suit, investigation or proceeding pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect;
(ixxii) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested solvency certificate signed by the Administrative Agentchief financial officer of the Loan Parties;
(xxiii) [intentionally omitted];
(xiv) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xixv) financial projections for a period of four Fiscal Years after evidence that the Closing Date prepared by management Security Documents shall be effective to create in favor of the BorrowerAdministrative Agent a legal, valid and enforceable first (except for Liens permitted pursuant to Section 7.01 and entitled to priority under applicable Law) security interest in and Lien upon the Collateral, along with, in form and substance satisfactory to the Lenders, evidence that all filings, recordings, deliveries of instruments and other actions necessary or desirable in the opinion of the Administrative Agent to protect and preserve such security interests shall have been duly effected;
(xvi) a completed and fully executed perfection certificate (or a bringdown of the perfection certificate provided with respect to the Fourth Amended and Restated Credit Agreement) with respect to each Loan Party and the results of UCC searches (and the equivalent thereof in all applicable foreign jurisdictions) and other evidence satisfactory to the Administrative AgentAgent that there are no Liens upon the Collateral, other than Liens permitted pursuant to Section 7.01 and otherwise in form and substance satisfactory to the Lenders;
(xvii) executed counterparts of (A) the Amendment and Reaffirmation, and (B) a Third Amendment to Pledge Agreement;
(xviii) assignments to the Administrative Agent for the benefit of the Lenders, of all notes and instruments evidencing intercompany Indebtedness among the Company and its Subsidiaries; and
(xiixix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower Company shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Company and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Lender, the Facility Guarantor and the BorrowerCompany;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentNotes;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of or resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, existing and in good standing and qualified to engage in business in Nevada and Texasits jurisdiction of organization;
(viA) a favorable opinion of Xxxxxx and Xxxxx, LLPWilmerHale, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each LenderLender substantially in the form set forth in -1; (B) a favorable opinion of WilmerHale, as special UK counsel to such matters concerning the Borrower and the Loan Documents as Parties, addressed to the Administrative Agent and its each Lender substantially in the form set forth in Exhibit G-2; (C) a favorable opinion of Linklaters Singapore Pte. Ltd., special Singapore counsel may reasonably requestto the Administrative Agent, addressed to the Administrative Agent and each Lender substantially in the form set forth in Exhibit G-3; and (D) a favorable opinion of DLA Piper, LLP, special Luxembourg counsel to the Loan Parties, addressed to the Administrative Agent and each Lender substantially in the form set forth in Exhibit G-4;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by 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;
(viiivi) a certificate signed by a Responsible Officer of the Borrower Company and the Facility Guarantor 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;
(vii) a duly completed Compliance Certificate as of the last day of the fiscal quarter ended on March 31, 2014, signed by a Responsible Officer of the Company;
(viii) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated;
(ix) UCC searchesreceipt not less than five Business Days prior to the Closing Date of all information required to be obtained by each Lender, as of a period ending reasonably satisfactory to the Arrangers, and the Administrative Agent, listing all effective financing statements which name pursuant to the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentAct;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;the case of a Luxembourg Borrower:
(xiA) financial projections for a period of four Fiscal Years after the Closing Date prepared by management an excerpt of the Borrower, in form satisfactory records of the Luxembourg Borrower held at the Luxembourg Register of Commerce and Companies dated no earlier than one Business Day prior to the Administrative Agent; and
date of this Agreement (xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative AgentExtrait du Registre de Commerce et des Sociétés).
(dB) The Closing Date shall have occurred on or before June 30A copy of a certificate of non-inscription of a judicial decision, 2011issued by the Luxembourg Register of Commerce and Companies in relation to the Luxembourg Borrower dated no earlier than one Business Day prior to the date of this Agreement (Certificat de non-inscription d’une décision judiciaire).
(eC) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect A copy of a resolution of the Existing Letters board of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in managers of the Existing Credit Agreement) pursuant to Luxembourg Borrower:
a. approving the terms of of, and the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; providedtransactions contemplated by, however, all provisions contained in the Loan Documents (as such term to which it is defined in a party and resolving that it executes the Existing Credit Agreement) Loan Documents to which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 it is a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.party;
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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date on or before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, Security Agreement and each Lender and the Borrowerother Collateral Document;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party, is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is (A) duly organized or formed, formed and that the Borrower is (B) validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 and Xxxxx, LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning Lender (which opinion shall expressly permit reliance by successors and permitted assigns of the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably requestaddressees thereof);
(viivi) a certificate of a Responsible Officer of the Borrower each of Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 Cxxxxxxxx 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, 2022 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the Consolidated Total Leverage Ratio as of December 31, 2022;
(viii) searches of UCC 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 Permitted Liens;
(ix) completed UCC searchesfinancing statements for each appropriate jurisdiction as is necessary, as of a period ending reasonably satisfactory to in the Administrative Agent’s sole discretion, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by to perfect the Administrative Agent’s security interest in the Collateral;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paidpaid (including, without limitation, all fees to be paid pursuant to Section 2.10(b)) to the Administrative Agent, the Arrangers and the Fee Letters shall be in full force Lenders and effectany other accrued and unpaid fees or commissions due hereunder.
(c) Unless waived by the Administrative Agent, the Borrower Cxxxxxxxx shall have paid all Attorney Costs reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent actually incurred and invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 Cxxxxxxxx and the Administrative Agent).
(d) The (i) Upon the reasonable request of any Lender made at least seven (7) days prior to the Closing Date, the Borrowers shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, in each case at least three (3) days prior to the Closing Date and (ii) at least three (3) days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have occurred on or before June 30delivered, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as that so requests, a Beneficial Ownership Certification in relation to such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effectParty. Without limiting the generality of the provisions of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of certified resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach jurisdiction where such Loan Party is qualified to do business, other than the good standing certificates permitted to be delivered by the Borrower following the Closing Date pursuant to Section 6.05;
(viv) a The favorable opinion of Xxxxxx and Xxxxx, LLP, counsel to the Borrower, DLA Pxxxx Xxxxxxx addressed to the Administrative Agent and each Lender, as to such the matters set forth concerning the Borrower Loan Parties and the Loan Documents as the in form and substance reasonably satisfactory to Administrative Agent and its counsel may reasonably requestAgent;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (Aa) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 (Bb) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower certifying (Aa) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (Bb) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
, (ixc) UCC searchesstating the Total Capitalization Ratio as of December 31, 2007, (d) that no Internal Control Event has occurred since December 31, 2006 which involves (A) an impact upon EBITDA in an amount which is in excess of $1,000,000, or (B) fraud, error or irregularity on the part of any Responsible Officer of the Borrower or its Significant Subsidiaries or any other management staff of Borrower and its Significant Subsidiaries having responsibility for the design or supervision of internal controls or the preparation of financial statements of Borrower and its Subsidiaries, and (e) that, as of a period ending reasonably satisfactory the Closing Date, there is no action, suit, investigation or proceeding pending or, to the Administrative Agentknowledge of Borrower, listing all effective financing statements which name the threatened against Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agentin any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect;
(xviii) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xiiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of the counsel to Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative the Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower Company in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications certificates as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, formed and that the Borrower is Company and each Guarantor is, validly existing, existing and in good standing and qualified to engage in business in Nevada and Texasits jurisdiction of organization;
(viv) a favorable opinion of Xxxxxx and Xxxxx, LLP, counsel to the BorrowerLoan Parties acceptable to the Agent, addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower Loan Parties and the Loan Documents as in form and substance satisfactory to the Administrative Agent and its counsel may reasonably requestAgent;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could reasonably be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect;
, and (ixC) UCC searches, a calculation of the financial covenants set forth in Section 7.12 as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management last day of the Borrowerfiscal quarter of the Company ended January 2, in form satisfactory to the Administrative Agent2016; and
(xiiviii) such other assurancesevidence that the commitments under the Credit Agreement dated as of May 31, certificates2013, documentsas amended or modified, consents among the Company, JPMorgan Chase Bank, N.A., as agent and a syndicate of lenders (the “Existing Credit Agreement”) have been or opinions as concurrently with the Administrative AgentClosing Date are being terminated, and that all loans and obligations thereunder have been paid in full (except to the L/C Issuer, or extent being so repaid with the Required Lenders reasonably may requireinitial Loans) and any and all liens thereunder shall have been terminated.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower Company shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Company and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the other Loan Documents, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes the Notes, executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 and XxxxxX. Faneuil, LLPEsq., counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 Borrowers certifying (A) that the conditions specified in Sections 4.02(a4.2(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;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(xviii) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xiix) financial projections for a period evidence that each of four Fiscal Years after the Existing Credit Agreement and the GPC Credit Agreement (as such term is defined in the Existing Credit Agreement) have been or concurrently with the Closing Date prepared by management are being terminated and all Liens securing obligations under the Existing Credit Agreement and the GPC Credit Agreement have been or concurrently with the Closing Date are being released;
(x) a fully executed Perfection Certificate from each Borrower and the results of Uniform Commercial Code searches with respect to the BorrowerCollateral, indicating no Liens other than Permitted Liens and otherwise in form and substance satisfactory to the Administrative Agent;
(xi) the most recent Accounts Receivable aging report of the Borrowers dated as of a date which shall be no more than fifteen (15) days prior to the Closing Date and the Borrowers shall have notified the Administrative Agent in writing on the Closing Date of any material deviation from the Accounts Receivable values reflected in such Accounts Receivable aging report and shall have provided the Administrative Agent with such supplementary documentation as the Administrative Agent may reasonably request; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Issuer or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent).
(d) The Closing Date Security Documents shall be effective to create in favor of the Administrative Agent a legal, valid and enforceable first priority (except for Permitted Liens entitled to priority under applicable law) security interest in and lien upon the Collateral. All filings, recordings, deliveries of instruments and other actions necessary or desirable in the opinion of the Administrative Agent to protect and preserve such security interests shall have occurred on or before June 30, 2011been duly effected. The Administrative Agent shall have received evidence thereof in form and substance satisfactory to the Administrative Agent.
(e) The Borrower Administrative Agent and each of the Lenders shall have delivered written confirmation that all Obligations received from the Borrowers the initial Borrowing Base Report and marked-to-market inventory report each as at September 23, 2005.
(as such term defined in f) Evidence satisfactory to the Existing Credit Agreement) owing to Administrative Agent and each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters Lenders that MLP has consummated the initial public offering of Credit, which are going to be transferred its limited partnership units and deemed issued under this Agreement, have been irrevocably paid has received gross cash proceeds in full in cash and that each Lender’s Commitments connection therewith of not less than $90,000,000.
(as such term is defined in the Existing Credit Agreementg) pursuant Evidence satisfactory to the terms Administrative Agent and each of the Existing Credit Agreement Lenders of the corporate and capital structure of the Loan Parties.
(h) The Administrative Agent and each of the Lenders shall have been terminated received the result of a commercial financial examination of the Borrowers completed in full prior June, 2005, and the results thereof shall be satisfactory in all respects to the closing Administrative Agent and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effectLenders. Without limiting the generality of the provisions of Section 9.049.4, for purposes of determining compliance with the conditions specified in this Section 4.014.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning 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, the Pledge Agreement, each Mortgage Property Support Document and each other Collateral Document, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the each Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 and XxxxxBlock & Garden, LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning substantially in the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably requestform set forth in Exhibit I;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 Holdings certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2014, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) searches of UCC 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 Permitted Liens;
(ix) completed UCC searchesfinancing statements for each appropriate jurisdiction as is necessary, as in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the Collateral;
(x) stock or membership certificates, if any, evidencing the Equity Interests pledged pursuant to the Collateral Documents and undated stock or transfer powers duly executed in blank; in each case to the extent such Equity Interests are certificated;
(xi) in the case of any personal property Collateral located at premises leased by a period ending reasonably Loan Party and set forth on Schedule 4.01(a)(xi), such estoppel letters, consents and waivers from the landlords of such real property (such letters, consents and waivers shall be in form and substance satisfactory to the Administrative Agent); provided, listing all effective financing statements which name however, that if the Borrower Borrowers fail to obtain any landlord waiver or other consent or document requested of any third party, then the requirements of its Subsidiaries this clause (xi) shall be deemed to be satisfied if the Borrowers used commercially reasonable efforts to obtain the same but were unable to do so;
(xii) a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of Holdings based on the consolidated financial condition of Holdings as debtorof March 31, together with 2015 for the four fiscal quarters then ended but giving effect to the Closing Date transactions contemplated hereby;
(xiii) copies of insurance policies, declaration pages, certificates, and endorsements of insurance or insurance binders evidencing liability, casualty, property, terrorism and business interruption insurance meeting the requirements set forth herein or in the Collateral Documents or as required by the Administrative Agent, including, without limitation, (i) standard flood hazard determination forms and (ii) if any property is located in a special flood hazard area (A) notices to (and confirmations of receipt by) such financing statements requested Loan Party 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 (B) evidence of applicable flood insurance, if available, in each case in such form, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 or as otherwise required by the Administrative Agent;
(xxiv) a Solvency Certificate signed by the chief financial officer of each of Holdings, each Borrower and each Guarantor as to the Solvency and related matters of each Borrower, individually, and of each Guarantor, taken together with the Borrowers and all Guarantors, after giving effect to the initial borrowings under the Loan Documents and the other transactions contemplated hereby;
(xv) evidence that the Indebtedness owed by the Borrowers under the Existing Credit Agreement and all insurance required to be maintained pursuant to Section 6.04 has other existing indebtedness for borrowed money of Holdings and its Subsidiaries (other than Indebtedness permitted under this Agreement), and all obligations of the Loan Parties in respect of the Existing Credit Agreement, have been obtained or concurrently with the Closing Date are being terminated and is in effectall Liens securing obligations thereunder have been or concurrently with the Closing Date are being released;
(xixvi) financial projections for a period of four Fiscal Years after the Closing Date prepared Administrative Agent and each Lender shall have received all documentation and other information requested by management of the BorrowerAdministrative Agent or such Lender, as applicable, in form satisfactory order to comply with its obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Administrative AgentUSA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)); and
(xiixvii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (including any local counsel) (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent).
(d) The Closing Date capital and organizational structure of the Loan Parties shall have occurred on or before June 30, 2011be reasonably satisfactory to the Administrative Agent.
(e) The Borrower After giving effect to the transactions contemplated hereby and the initial Credit Extension, the Borrowers shall have delivered written confirmation that all Obligations Unused Revolving Credit Commitments of at least $25,000,000.
(as such term defined f) The Administrative Agent’s due diligence with respect to the Loan Parties and their Subsidiaries shall have been completed in a manner reasonably acceptable to the Existing Credit AgreementAdministrative Agent.
(g) owing to each Lender The Administrative Agent shall have received (as such term is defined in i) the Existing Credit AgreementAudited Financial Statements and (ii) under the Existing Credit Agreement, other than Obligations in respect unaudited quarterly consolidated balance sheet of the Existing Letters Company and its Subsidiaries for each fiscal quarter during each fiscal year ended December 31, 2012, 2013 and 2014, and the related unaudited consolidated statements of Creditincome, which are going to be transferred members’ equity, and deemed issued under this Agreementcash flows, have been irrevocably paid each in full in cash form and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant substance satisfactory to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effectAdministrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, and the Pledge Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrower and counterparts of the Guaranty executed by each Guarantor Subsidiary as of the Closing Date sufficient in number for distribution to the Administrative Agent, each Lender and each Guarantor;
(iiA) a Revolving Loan Notes Note executed by the Borrower in favor of each Revolving Lender requesting a Revolving Loan Note, (B) a Term Loan Note executed by the Borrower in favor of each in Term Loan Lender requesting a principal amount equal to such Lender’s Commitment;
Term Loan Note and (iiiC) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iviii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the 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 Nevada and Texaseach jurisdiction where its has substantial physical operations;
(viv) a the favorable opinion of Xxxxxx and XxxxxXxxxxxxx Xxxxxx, LLP, outside counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to and covering the matters set forth in Exhibit F and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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; (C) 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 Closing Date, and (D) that each Domestic Subsidiary qualifying as a Guarantor Subsidiary has executed and delivered the Guaranty and that the Guarantor Subsidiaries on a consolidated basis satisfy the 90% Threshold as of the most recent completed fiscal quarter end of the Borrower prior to the Closing Date;
(viii) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) UCC searchesan initial Revolving Loan Notice, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agentif any;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effectan initial Term Loan Interest Rate Selection Notice, if any;
(xi) financial projections for a period delivery of four Fiscal Years after documents and/or evidence of other actions as may be reasonably necessary under applicable law to perfect the Closing Date prepared by management Liens of the Borrower, Administrative Agent under the Pledge Agreement as a first priority Lien in form satisfactory and to such the Pledged Interests as the Administrative AgentAgent may reasonably require, including the delivery by the Borrower of all certificates evidencing Pledged Interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 effectiveness of this Agreement, the amendment and restatement of the Existing Credit Agreement and the obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is are all subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that each of the Borrower and Guarantors is validly existing, in good standing and qualified to engage in business in Nevada its state of organization and Texaseach 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 and Xxxxx, LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to and covering such matters concerning relating to the Borrower and Loan Parties, the Loan Documents and the transactions contemplated therein as the Administrative Agent and its counsel or the Required Lenders may reasonably request; provided, however, that opinions with respect to Subsidiary Guarantors that are not organized in the States of Delaware, Maryland and Michigan (other than enforceability opinions with respect to any Loan Document to which such Subsidiary Guarantors is a party which will not be from the jurisdiction of formation unless otherwise requested below), will be required only if requested by the Administrative Agent, in its sole discretion, with the understanding that enforceability opinions will be required with respect to any Loan Document to which such Subsidiary Guarantors is a party, which if the Administrative Agent has not requested other opinions in addition to enforceability, may be subject to necessary assumptions to avoid the requirement of having opinions from the jurisdiction of formation of such Subsidiary Guarantors;
(viivi) a certificate of a Responsible Officer of the Borrower Parent either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower each Loan Party and the validity against the Borrower each Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower Parent certifying (A) that the conditions specified in Sections 4.02(a5.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2023 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2024, signed by a Responsible Officer of the Borrower;
(ix) UCC searches, a duly completed Unencumbered Pool Report calculated as of June 30, 2024, signed by a period ending reasonably satisfactory to Responsible Officer of the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentBorrower;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained an executed Certificate of Beneficial Ownership and is such other documentation and other information requested in effect;
(xi) financial projections for a period of four Fiscal Years after connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative AgentUSA Patriot Act; and
(xiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Issuers or the Required Lenders reasonably may require.
(b) The fee set forth absence of any action, suit, investigation or proceeding pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or governmental authority related to the invitation letter of the Borrower Loan that could reasonably be expected to each Lender and any other have a Material Adverse Effect.
(c) Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(cd) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed 67484784_12 by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentNotes;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Company and each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Company and each Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 written opinions of Xxxxxx the Chief Legal Officer of the Borrowers, of the Company’s Dutch counsel, and Xxxxx, LLP, counsel to of the BorrowerBorrowers’ outside counsels, addressed to the Administrative Agent and each Lenderthe Lenders, in substantially the forms attached hereto as to such matters concerning the Borrower Exhibit I-1 (for US opinions) and the Loan Documents as the Administrative Agent and its counsel may reasonably requestExhibit I-2 (for foreign opinions), respectively;
(viivi) a certificate of signed by a Responsible Officer of the Borrower either Company certifying that (A) attaching copies of Sections 4.02(a) and (b) are true and correct; and (B) all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the Borrower such Loan Party of the Loan Documents to which it is a partyparty have been obtained, and such consents, licenses and approvals shall be are in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(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;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(xvii) evidence that the Existing Credit Agreement, and all insurance required to be maintained pursuant to Section 6.04 commitments thereunder, has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after or concurrently with the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agentis being terminated; and
(xiiviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C IssuerIssuers, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) The Loan Parties shall have provided the documentation and other information to the Administrative Agent and the Lenders that are required under applicable “know-your-customer” 67484784_12 rules and regulations, including the Act, and requested by the Administrative Agent or any Lender, at least five Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Borrower Company shall have paid all Attorney Costs reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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: Revolving Credit Agreement (Chicago Bridge & Iron Co N V)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles electronically transmitted copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrower Agent;
(ii) Revolving Loan Notes a Note executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a Swing Line Note executed by the Borrower in favor counterparts of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimiteach other Loan Document;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(v) such documents and certifications as of a recent date as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 Xxxxxx and XxxxxJones, LLPWalker, Waechter, Poitevent, Carrère & Xxxxxxx L.L.P., counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to such matters concerning the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably requestAgent;
(vii) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 Agent certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as of a period ending reasonably satisfactory certificate attesting to the Administrative AgentSolvency of the Loan Parties, listing all effective financing statements which name taken as a whole, before and after giving effect to the extension of Loans hereunder, from the chief financial officer of the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence all commitments of lenders under the Prior Credit Agreement that are not parties to this Agreement shall have been terminated and all insurance required commitments thereunder of each Lender that is a party to this Agreement shall be maintained pursuant to Section 6.04 has been obtained and is in effect;evidenced only by this Agreement. and
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders any Lender reasonably may require.
(bi) The fee set forth in the invitation letter of the Borrower to each Lender and any other All fees required to be paid to the Administrative Agent and MLPF&S 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, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower The Borrowers shall have paid all Attorney Costs reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30February 15, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 (Tidewater Inc)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent 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 facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes executed by the Borrower in favor of each Lender requesting a Revolving Loan Note, each in a principal 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 a principal amount equal to the Swing Line SublimitAdministrative Agent;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that each of the Borrower and Guarantor is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 Xxxxxxxx & Xxxxxx and Xxxxx, LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid., and the Fee Letters Letter shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June August 30, 20112003.
(e) The Borrower No actions, suits, proceedings, claims or disputes shall have delivered written confirmation that all Obligations been threatened or commenced in any court, in arbitration or before any Governmental Authority, against the Borrower or any of its Subsidiaries which (as such term defined i) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or (ii) if determined adversely, could reasonably be expected to have, either individually or in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreementaggregate, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 theretoMaterial Adverse Effect.
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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany and, if Advance Funding Arrangements shall exist with respect to funding on the Closing Date, executed Advance Funding Documentation in form and number reasonably acceptable to the Administrative Agent;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentNotes;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower Loan Party is validly existing, in good standing and qualified to engage in business in Nevada its jurisdiction formation or incorporation and Texaseach other jurisdiction reasonably requested by the Administrative Agent;
(viv) a favorable opinion of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxxx, Xxxx LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, covering such matters concerning the Borrower and relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent and its the Lenders shall reasonably request and such opinion shall expressly allow permitted successors and assigns of the Administrative Agent and the Lenders to rely on such opinion;
(vi) a favorable opinion of Stek Advocaten B.V., special counsel may to the Administrative Agent, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, covering such matters relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent and the Lenders shall reasonably request;
(vii) a certificate favorable opinion of a Responsible Officer of Xxxxx & XxXxxxxx Amsterdam N.V., counsel to Parexel International Holding B.V., addressed to the Borrower either (A) attaching copies of all consentsAdministrative Agent and each Lender, licenses in form and approvals required in connection with substance reasonably satisfactory to the execution, delivery and performance by the Borrower Administrative Agent and the validity against the Borrower of Lenders, covering such matters relating to the Loan Documents to which it is a party, and the transactions contemplated thereby as the Administrative Agent and the Lenders shall reasonably request and such consents, licenses opinion shall expressly allow permitted successors and approvals shall be in full force assigns of the Administrative Agent and effect, or (B) stating that no the Lenders to rely on such consents, licenses or approvals are so requiredopinion;
(viii) a certificate signed by a Responsible Officer of the Borrower Company 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 havehad, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as certificate of a period ending reasonably satisfactory Financial Officer the Company, certifying that the Company is, and the Company and its Subsidiaries on a consolidated basis are, Solvent both before and after giving effect to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentTransactions;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has the Existing Credit Agreement and the Existing Term Loan Facilities have been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after or substantially concurrently with the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agentare being terminated; and
(xiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders any Lender reasonably may require.
(bi) The fee set forth in the invitation letter of the Borrower to each Lender and any other All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid and the Fee Letters shall be in full force and effect.
(ciii) Unless unless waived by the Administrative Agent, the Borrower Company shall have paid all Attorney Costs reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, (i) for purposes of determining compliance with the conditions specified in this Section 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 theretothereto and (ii) in the event that Advance Funding Arrangements shall exist, the delivery by any Lender (x) of funds pursuant to such Advance Funding Arrangements (“Advance Funds”) and (y) its signature page to this Agreement shall constitute the request, consent and direction by such Lender to the Administrative Agent (unless expressly revoked by written notice from such Lender received by the Administrative Agent prior to the earlier to occur of funding or the Administrative Agent’s declaration that this Agreement is effective) to withdraw and release to the Borrowers on the Closing Date the applicable funds of such Lender to be applied to the funding of Loans by such Lender in accordance with Section 2.02 upon the Administrative Agent’s determination (made in accordance with and subject to the terms of this Agreement) that it has received all items expressly required to be delivered to it under this Section 4.01.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Credit Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Credit 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 Credit Documents to which the Borrower such Credit Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Credit Party is duly organized or formed, and that the Borrower each Credit Party is validly existing, in good standing and qualified to engage in business in Nevada and Texasits jurisdiction of organization or formation;
(viv) a favorable opinion opinions of Xxxxxxxx Xxxxxx Xxxxxxxx and XxxxxXxxx LLP and the General Counsel of Borrower, LLP, each as counsel to the BorrowerCredit Parties, addressed to the Administrative Agent Agent, each L/C Issuer, and each Lender, as to the matters set forth in Exhibit G and such other matters concerning the Borrower Credit Parties and the Loan Credit Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower each Credit Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Credit Party and the validity against the Borrower such Credit Party of the Loan Credit Documents to which it is a party, and such 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 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;
(ixviii) UCC searches, a duly completed Compliance Certificate (prepared on a pro forma basis to take into account the Loans made on the Closing Date) as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management last day of the fiscal quarter of Borrower ended on March 31, 2018, signed by a Responsible Officer of Borrower, in form satisfactory to the Administrative Agent; and
(xiiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C IssuerIssuers, the Swing Line Lenders or the Required Lenders reasonably may require.
(b) The fee set forth There shall not have occurred since December 31, 2017 any event or condition that has had or could reasonably be expected, either individually or in the invitation letter aggregate, to have a Material Adverse Effect.
(c) There shall not exist any action, suit, investigation, or proceeding pending or, to the knowledge of any Credit Party, threatened in any court or before any arbitrator or Governmental Authority related in any way to the Borrower Obligations or that could reasonably be expected to each Lender and any other have a Material Adverse Effect.
(d) Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(ce) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of the counsel to Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The the Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the BorrowerLoan Parties, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Agreement and the BorrowerOmnibus Reaffirmation and Amendment;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require authorizing such Loan Party to enter into the transactions 8884322.11 contemplated by this Agreement and evidencing the identity, authority and capacity 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 such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(viv) a favorable opinion of Xxxxxx and Xxxxx, LLP, counsel to the Borrower, Loan Parties acceptable to the Administrative Agent (including local counsel opinions as requested by the Administrative Agent) addressed to the Administrative Agent and each Lender, as to such the matters set forth concerning the Borrower Loan Parties and the Loan Documents as in form and substance satisfactory to the Administrative Agent and its counsel may reasonably requestAgent;
(viivi) a certificate of a Responsible Officer of the Borrower certifying: (A) either (Ax) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower Loan Parties and the validity against the Borrower Loan Parties 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;
, (viii) a certificate signed by a Responsible Officer of the Borrower certifying (AB) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (BC) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ixvii) UCC searches(A) the Audited Financial Statements, as (B) audited financial statements of Holdings and its Subsidiaries for the 2014 and 2015 fiscal years, (C) unaudited financial statements of Holdings and its Subsidiaries for the Reference Period ended September 10, 2016, and (D) financial projections and business assumptions including forecasts prepared by management of the Borrower of balance sheets, income statements and cash flow statements on a period ending reasonably quarterly basis for the 2017 fiscal year and on an annual basis for each year thereafter through the Maturity Date, each in form satisfactory to the Administrative Agent, listing all effective financing statements which name Agent and the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentLenders;
(xviii) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effecteffect (which insurance shall be acceptable to the Administrative Agent and the Lenders), together with insurance binders or other satisfactory certificates of insurance and endorsements naming the Administrative Agent, on behalf of the Lenders, as an additional insured or lender loss payee, as the case may be, under all insurance policies maintained with respect to the liabilities, assets and properties of the Loan Parties;
(xiix) financial projections for a period of four Fiscal Years after evidence in form and substance reasonably satisfactory to the Closing Date prepared by management Administrative Agent that the Collateral Documents shall be effective to create in favor of the BorrowerAdministrative 8884322.11 Agent, on behalf of the Secured Parties, a legal, valid and enforceable first priority security interest in and Lien upon the Collateral. All filings, recordings, deliveries of instruments and other reasonable actions necessary or desirable in the opinion of the Administrative Agent to perfect, protect and preserve such security interests shall have been duly effected;
(x) a completed and fully-executed Perfection Certificate for each of the Loan Parties, the results of UCC, tax lien, bankruptcy and litigation searches (and the equivalent thereof in all applicable foreign jurisdictions) with respect to the Loan Parties and the Collateral indicating no Liens other than Permitted Liens and otherwise in form and substance satisfactory to the Administrative Agent; andand copies of duly filed UCC-1 forms for each of the Loan Parties in each appropriate jurisdiction and office under the UCC;
(xi) a duly completed Compliance Certificate in form and detail satisfactory to the Administrative Agent and the Lenders, signed by a Responsible Officer of the Borrower, as of the Closing Date (based upon the unaudited financial statements of Holdings and its Subsidiaries for the Reference Period ending September 10, 2016), after giving effect to the Loans made hereunder on the Closing Date and the repayment of indebtedness with the proceeds thereof, evidencing pro forma compliance with each of the financial covenants set forth in Section 7.11 hereof (assuming such financial covenants were in effect as of September 10, 2016);
(xii) satisfactory evidence that, simultaneously with and upon the application of the proceeds of the Loans to be advanced hereunder on the Closing Date, all indebtedness and other obligations outstanding under the Existing Credit Agreement will have been paid and satisfied in full and terminated in accordance with the terms thereof or otherwise rolled into the Obligations under this Agreement;
(xiii) certified copies of those documents executed in connection with all Subordinated Debt outstanding on the Closing Date and identified on Schedule 4.01(a)(xiii); and
(xiv) such other assurances, environmental reports, other reports, field audits, audits, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Agent or the Required Lenders reasonably may require.
(b) The fee set forth absence of any event or condition since the date of the Audited Financial Statements that has had or could be reasonably expected, either individually or in the invitation letter aggregate, to have a Material Adverse Effect.
(c) The absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Loan Parties, threatened in any court or before any arbitrator or governmental authority that would reasonably be expected to have a Material Adverse Effect.
(d) The Lenders shall have completed a due diligence investigation of the Borrower and the Guarantors in scope, and with results, satisfactory to each Lender the Lenders. 8884322.11
(e) Arrangements completely satisfactory to the Administrative Agent have been made for the payment at closing of all accrued fees and any other fees expenses of the Administrative Agent required to be paid on or before prior to the Closing Date shall have been paid, made (including the reasonable fees and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs expenses of counsel for the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts ) and arrangements completely satisfactory to the Arrangers for the payment of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or the fees to be incurred by it through paid on or prior to 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in to the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) Arrangers pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effectFee Letters. 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 each L/C Issuer and Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party (if applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, the Guaranty and a First Amendment to the Security Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes executed by the Borrower in favor of and delivered to each Lender requesting that requests issuance of a Revolving Loan NoteNote which, each in a principal amount equal to such Lender’s Commitmentthe case of any lender under the Existing Credit Agreement, will be given in renewal, modification and replacement of its existing note;
(iii) a Swing Line Note executed Such amendments or supplements to other Collateral Documents as may be requested by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line SublimitAdministrative Agent;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 Xxxxxxxx & Xxxxxx L.L.P., and Xxxxxof Xxxxxxxxx X. Xxxxxxxx, LLP, general counsel to the BorrowerLoan Parties, addressed to the Administrative Agent, each Collateral Agent and each Lender, as to the matters set forth in Exhibit D and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Collateral Agents may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 (b4.02(b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, a solvency certificate signed by the Treasurer (or such other officer as of a period ending reasonably satisfactory may be acceptable to the Administrative Agent, listing all effective financing statements which name ) of the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by in form and substance satisfactory to the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period Borrowing Base Certificate prepared as of four Fiscal Years after the Closing Date prepared by management of the BorrowerJuly 31, in form satisfactory to the Administrative Agent2011; and
(xiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the any L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter Administrative Agent shall have received copies of updated UCC searches of the Borrower and its Material Domestic Subsidiaries, each such search showing no Liens except Permitted Liens.
(c) The Administrative Agent shall have received an updated list of all Rolling Stock owned by the Loan Parties (other than Rolling Stock with a de minimis value), which list shall categorize each item of material Rolling Stock and shall identify whether such Rolling Stock is evidenced by a certificate of title.
(d) The Administrative Agent shall have received appraisals of the Loan Party’s Inventory and Rolling Stock, which appraisal shall be satisfactory to each Lender and any other the Collateral Agents in their sole discretion.
(e) The Administrative Agent shall have received executed counterparts of this Agreement from the Lenders.
(f) Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer duly authorized officers of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerMettler-Toledo International;
(ii) Revolving Loan original Notes executed by the Borrower exexxxxx xx xxx Xpplicable Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentNotes;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers duly authorized officers of the Borrower as the Administrative each Loan Party (or, if appropriate, of Mettler-Toledo International on behalf of such Loan Parxx) xx xxx Xxministrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer duly authorized officer thereof authorized to act as a Responsible Officer duly authorized officer on behalf of such Loan Party in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that each of the Borrower Loan Parties is validly existing, to the extent applicable, in good standing and qualified to engage in business in Nevada each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect, including, to the extent applicable, certified copies of the Borrowers' Organization Documents, certificates of good standing or comparable certificates for the jurisdiction and/or certificates of qualification to engage in business and Texastax clearance certificates;
(v) favorable opinions of Fried, Frank, Harris, Shriver & Jacobson and local counsel to the Loan Partixx, xxdressed xx xxx Administrative Agent and each Lender, in the forms attached as Exhibit H hereto;
(vi) a favorable opinion of Xxxxxx and Xxxxx, LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
(vii) a certificate of a Responsible Officer duly authorized officer of the Borrower either each Loan Party (Aor, if appropriate, of Mettler-Toledo International on behalf of such Loan Party) xxxxxx (X) attaching copies of all consents, licenses material consents and approvals of Governmental Authorities or any other Person required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses material consents and approvals shall be in full force and effect, or (B) stating that no such consents, licenses material consents or approvals are so required;
(viiivii) copies of the financial statements referred to in Sections 5.05(a) and (b), and a certificate signed by a Responsible Officer of Mettler-Toledo International certifying on behalf of the Borrower certifying Borrowexx xxx xxe Guarantor (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, which shall not be less than Baa3 in the case of Moody's and not less than BBB- in the case of S&P.
(xxxi) a completed Compliance Certificate as of June 30, 2003, including for purposes of such certificate evidence that after giving effect to the repayment in full of obligations under the Existing Credit Agreement, the issuance and sale of the Senior Notes and the initial Borrowings, Mettler-Toledo International's and its consolidated Xxxxxxxxxxxx' Consolidated Leverage Ratio shall not exceed 2.25 to 1.0;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xix) financial projections for a period evidence that the Existing Credit Agreement is being terminated and the obligations thereunder are being repaid in full simultaneously with the Closing Date, all guarantees of four Fiscal Years after obligations thereunder have been terminated, and that all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date prepared by management are being released;
(xi) evidence that Mettler-Toledo International shall have received gross xxxx xxxxxxxx from the issuance of Senior Notes, which proceeds together with the Borrowerproceeds from the initial Borrowing under this Agreement, in form satisfactory shall be used to repay all outstanding obligations under the Administrative AgentExisting Credit Agreement; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the any L/C Issuer, any Swingline Lender or the Required Lenders reasonably may require.
(b) The fee set forth in Administrative Agent shall be reasonably satisfied with the invitation letter tenor, ranking and other material terms and conditions of the Borrower to each Lender Senior Notes.
(c) Any fees and any other fees expenses required to be paid on or before the Closing Date to the extent invoiced no less than two (2) Business Days prior to the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(cd) Unless waived by the Administrative Agent, the Borrower Mettler-Toledo International shall have paid all Attorney Costs of the Administrative xx xxx Xxxxxxstrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced no less than two (2) Business Days prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that After giving effect to the initial Borrowings under this Agreement and repayment of all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) outstanding obligations under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to at least $100 million shall be transferred and deemed issued undrawn under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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
Samples: Credit Agreement (Mettler Toledo International Inc/)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles facsimile (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement, the completed Perfection Certificate and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a Swing Line Note security agreement, in substantially the form of Exhibit G (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Security Agreement”), duly executed by each Loan Party, together with:
(A) certificates representing the Pledged Securities referred to therein accompanied by undated stock powers in the case of equity executed in blank and instruments indorsed in blank in the case of debt,
(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 Security Agreement, covering the Collateral described in the Security Agreement,
(C) 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 effective financing statements, lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriate,
(D) 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 necessary in order to perfect the Liens created thereby,
(E) the Control Agreements (as defined in the Security Agreement), in each case to the extent required in the Security Agreement and duly executed by the Borrower appropriate parties,
(F) evidence that all other action that the Administrative Agent may deem necessary in favor order to perfect the Liens created under the Security Agreement has been taken (including receipt of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimitduly executed payoff letters and UCC-3 termination statements;
(iv) [RESERVED];
(v) an intellectual property security agreement or agreements for each of copyrights, patents and trademarks, in substantially the form attached to the Security Agreement (as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(vvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 an opinion of Xxxxxx and XxxxxXxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to such matters concerning the Borrower Administrative Agent (which shall cover New York law and the General Corporation Law, Limited Liability Company Act and Revised Uniform Limited Partnership Act of Delaware);
(ix) an opinion of local counsel to the Loan Documents as Parties in each of Colorado, Delaware, Florida, Georgia, Michigan and Ohio, addressed to the Administrative Agent and its counsel may reasonably requestthe Secured Parties;
(viix) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Transaction and the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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, 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;
(ixxii) UCC searchesa certificate attesting to the Solvency of the Borrower and the Restricted Subsidiaries on a consolidated basis before and after giving effect to the Transaction and the incurrence of Indebtedness related thereto, as of a period ending from the Borrower’s chief financial officer in form and substance reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentArrangers;
(xxiii) evidence that all insurance required to be maintained pursuant to Section 6.04 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 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;
(xixiv) financial projections for a period of four Fiscal Years after evidence that the Existing Credit Agreement has been, or concurrently with the Closing Date prepared by management of the Borroweris being, in form satisfactory terminated and all Liens securing obligations, except with respect to the Administrative AgentMortgaged Properties set forth on Schedule 1.01(b), under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released; and
(xiixv) such other assurances, certificates, documents, consents certificates or opinions documents as the Administrative Agent, the L/C Issuer, or the Required Lenders Agent reasonably may require.
(bi) The fee set forth in All fees and expenses required to be paid to the invitation letter of Administrative Agent and the Borrower to each Lender Arrangers on or before the Closing Date shall have been paid and any other (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, and in each case, to the Fee Letters shall be in full force and effectextent invoiced.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs reasonable and documented fees, out-of-pocket charges and disbursements of one outside counsel and one local counsel in each relevant jurisdiction to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such reasonable and documented fees, out-of-pocket charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effectproceedings. Without limiting the generality of the provisions of Section 9.049.03(e), for purposes of determining compliance with the conditions specified in this Section 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentNotes;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that each of the Borrower Company and Logistics is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 Xxxxxx and XxxxxGxxxxx, Dxxx & Cxxxxxxx LLP, counsel to the BorrowerLoan Parties, and of the General Counsel of the Company, each addressed to the Administrative Agent and each Lender, as to such matters concerning in substantially the Borrower forms of Exhibits I-1 and the Loan Documents as the Administrative Agent and its counsel may reasonably requestI-2, respectively;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Company most recently ended prior to the Closing Date, signed by a Responsible Officer of the Company;
(ix) UCC searchesa certificate signed by a Responsible Officer of the Company, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence certifying that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Agent or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by The Company shall have paid all reasonable fees and disbursements of Hxxxx Mulliss & Wicker, PLLC, as counsel to the Administrative Agent, and of special and local counsel to the Borrower shall have paid all Attorney Costs of Lenders retained by the Administrative Agent (directly with respect to such counsel if requested by the Administrative Agent) any Foreign Obligors, in each case to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings Date (provided that the Company shall remain liable for any additional reasonable fees and expenses of such estimate shall not thereafter preclude a final settling of accounts between the Borrower and counsel to the Administrative AgentAgent in accordance with Section 10.04).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect2004. 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 (Avnet Inc)
Conditions of Initial Credit Extension. The obligation of each Lender and the Letter of Credit Issuer to make its any initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall following items (except those items that are expressly permitted to be originals or facsimiles (followed promptly by originals) unless otherwise specifieddelivered after the Closing Date pursuant to the Post-Closing Agreement), each properly executed by a Responsible Officer of the Borrowerapplicable Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Agreement and each of the Administrative Agent, each Lender and the BorrowerSecurity Instruments;
(ii) Revolving Credit Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Credit Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a Swing Line Note executed by the Borrower in favor Secretary’s certificate for each Loan Party certifying as to (A) true and complete copies of all Organizational Documents of such Loan Party attached thereto, (B) resolutions of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates Board of resolutions Directors or other actionorganizational action authorizing execution, delivery and performance of all Loan Documents to which such Loan Party is a party, and (C), incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may require officers (including specimen signatures) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications certification from any applicable Governmental Authority as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada its jurisdiction of organization and Texasin any other jurisdiction in which the failure to be so qualified could reasonably be expected to have a Material Adverse Effect, including certificates of good standing and qualification to engage in business in each applicable jurisdiction;
(viv) a favorable opinion of Xxxxxx and Xxxxx, LLPMcAfee & Xxxx, counsel to the BorrowerLoan Parties, and acceptable Canadian and New York counsel to the Loan Parties, each addressed to the Administrative Agent and each LenderLender and their successors and assigns, as to such the matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
(viivi) a certificate certificates of a Responsible Officer Officers of the Borrower Agent or the applicable Loan Parties either (A) attaching copies of identifying all consents, licenses and approvals required in connection with the execution, delivery and performance by the each Borrower and the validity against the Borrower each such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, and attaching true and correct copies thereof or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower Agent certifying (A) that the conditions specified in Sections 4.02(a5.02(a) and (b5.02(b) have been satisfied, satisfied and (B) that there has been no event or circumstance since as to the date matters described in Section 5.01(d);
(viii) (A) audited financial statements of the Audited Financial Statements that has had or could be reasonably expected to haveCompany and its Subsidiaries for each of the three (3) fiscal years immediately preceding the Closing Date, either individually or in (B) unaudited interim financial statements for the aggregateCompany and its Subsidiaries as of July 31, a Material Adverse Effect2021, and (C) financial projections of the Company and its Subsidiaries for the next two (2) fiscal years;
(ix) UCC searchesa certificate signed by the Chief Financial Officer or the Chief Accounting Officer of the Borrower Agent certifying that, as of a period ending reasonably satisfactory after giving effect to the Administrative Agententering into of the Loan Documents and the consummation of all of the Transactions, listing all effective financing statements which name (A) each Borrower is Solvent and (B) the Borrower or any of its Subsidiaries Loan Parties, taken as debtora whole, together with copies of such financing statements requested by the Administrative Agentare Solvent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections an initial Borrowing Base Certificate;
(xii) initial written notice of Borrowing;
(xiii) delivery of UCC and PPSA financing statements, suitable in form and substance for a period of four Fiscal Years after filing in all places required by applicable law to perfect the Closing Date prepared by management Liens of the BorrowerAdministrative Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable law to perfect the Liens of the Administrative Agent under such Security Instruments as a first priority Lien in form and to such other Collateral as the Administrative Agent may require;
(xiv) UCC and PPSA search results showing only those Liens as are acceptable to the Administrative Agent and Lenders;
(xv) evidence of the payment in full and cancellation of the Existing Agreement, including terminations of UCC and PPSA financing statements filed in connection with the Existing Agreement and other evidence of lien releases and other related matters on terms acceptable to the Administrative Agent;
(xvi) evidence satisfactory to the Administrative AgentAgent of the consummation (in compliance with all applicable laws and regulations, with the receipt of all material governmental, shareholder and third party consents and approvals relating thereto) of the Transactions;
(xvii) completion of a Field Exam, asset appraisal, insurance review and legal review; and
(xiixviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Letter of Credit Issuer, the Swing Line Lender or the Required Lenders may reasonably may require.
(b) The fee set forth At least five days prior to the Closing Date, (i) any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower and (ii) so long as requested by the invitation letter of Administrative Agent or any Lender at least ten days prior to the Borrower Closing Date, Borrowers shall have provided to Administrative Agent and each requesting Lender the documentation and any other information so requested in connection with applicable “know your customer” and Anti-Money Laundering Laws or Anti-Corruption Laws, including the PATRIOT Act.
(c) Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(cd) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all Attorney Costs reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower Administrative Agent shall have delivered written confirmation be satisfied that all Obligations after giving effect to (as such term defined in i) the Existing initial Credit AgreementExtension hereunder, (ii) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect consummation of the Existing Letters Transactions and payment of Creditall fees and expenses in connection therewith and (iii) any payables stretched beyond their customary payment practices, which are going to (x) Availability shall be transferred at least $25,000,000 and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in y) the Existing Credit Agreement) pursuant to the terms sum of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they Availability plus Eligible Cash shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effectbe at least $60,000,000. Without limiting the generality of the provisions of Section 9.0410.04, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 (Matrix Service 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of certified resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texas;each jurisdiction where such Loan Party is qualified to do business.
(viv) a favorable opinion opinions of Xxxxxx & Xxxxxxx LLP and Xxxxx, LLP, local counsel reasonably satisfactory to the BorrowerAdministrative Agent, addressed to the Administrative Agent and each Lender, as to such the matters set forth concerning the Borrower Loan Parties and the Loan Documents as the in form and substance reasonably satisfactory to Administrative Agent and its counsel may reasonably requestAgent;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (Aa) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 (Bb) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower certifying (Aa) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (Bb) that there has been no event or circumstance since the date of the Audited Financial Statements December 31, 2004 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (c) stating the Total Capitalization Ratio as of December 31, 2004 (or, in the alternative, stating the Borrower has elected to have the Applicable Rate determined on the basis of the S&P Rating and stating the then current S&P Rating);
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(xviii) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xiix) a Certificate dated as of the Closing Date, signed by a Responsible Officer of Borrower, stating that no Internal Control Event has occurred since December 31, 2004 which involves (A) an impact upon EBITDA in an amount which is in excess of $1,000,000, or (B) fraud, error or irregularity on the part of any Responsible Official of the Borrower or its Significant Subsidiaries or any other management staff of Borrower and its Significant Subsidiaries having responsibility for the design or supervision of internal controls or the preparation of financial projections for a period statements of four Fiscal Years after Borrower and its Subsidiaries;
(x) evidence that all commitments under the Existing Bank of America Credit Agreement and the Existing Union Bank Agreement have been or concurrently with the Closing Date prepared are being terminated, and all outstanding amounts thereunder paid in full and all Liens securing obligations under the Existing Bank of America Credit Agreement and the Existing Union Bank Agreement have been or concurrently with the Closing Date are being released;
(xi) A certificate signed by management a Responsible Officer of Borrower certifying that, as of the Closing Date, there is no action, suit, investigation or proceeding pending or, to the knowledge of Borrower, threatened against Borrower or any of its Subsidiaries in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect;
(xii) A copy of the Borrower’s annual report on form 10-K for the year ended December 31, in form satisfactory to the Administrative Agent2004; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of the counsel to Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 each Lender and the Letter of Credit Issuer to make its any initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agent:
precedent: (a) The Administrative Agent’s receipt of the following, each of which shall following items (except those items that are expressly permitted to be originals or facsimiles (followed promptly by originals) unless otherwise specifieddelivered after the Closing Date pursuant to the Post-Closing Agreement), each properly executed by a Responsible Officer of the Borrowerapplicable Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
its legal counsel: (i) executed counterparts of this Agreement, sufficient in number for distribution to Agreement and each of the Administrative Agent, each Lender and the Borrower;
Security Instruments; (ii) Revolving Credit Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Credit Loan Note, each in a principal amount equal to such Lender’s Commitment;
; (iii) a Swing Line Note executed by the Borrower in favor Secretary’s certificate for each Loan Party certifying as to (A) true and complete copies of all Organizational Documents of such Loan Party attached thereto, (B) resolutions of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates Board of resolutions Directors or other actionorganizational action authorizing execution, delivery and performance of all Loan Documents to which such Loan Party is a party, and (C), incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may require officers (including specimen signatures) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
; (viv) such documents and certifications certification from any applicable Governmental Authority as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada its jurisdiction of organization and Texas;
in any other jurisdiction in which the failure to be so qualified could reasonably be expected to have a Material Adverse Effect, including certificates of good standing and qualification to engage in business in each applicable jurisdiction; (viv) a favorable opinion of Xxxxxx and Xxxxx, LLPXxXxxx & Xxxx, counsel to the BorrowerLoan Parties, and acceptable Canadian and New York counsel to the Loan Parties, each addressed to the Administrative Agent and each LenderLender and their successors and assigns, as to such the matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
; (viivi) a certificate certificates of a Responsible Officer Officers of the Borrower Agent or the applicable Loan Parties either (A) attaching copies of identifying all consents, licenses and approvals required in connection with the execution, delivery and performance by the each Borrower and the validity against the Borrower each such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, and attaching true and correct copies thereof or (B) stating that no such consents, licenses or approvals are so required;
; 120 [Matrix] Credit Agreement #85638137 (viiivii) a certificate signed by a Responsible Officer of the Borrower Agent certifying (A) that the conditions specified in Sections 4.02(a5.02(a) and (b5.02(b) have been satisfied, satisfied and (B) that there has been no event or circumstance since as to the date matters described in Section 5.01(d); (viii) (A) audited financial statements of the Audited Financial Statements that has had or could be reasonably expected to haveCompany and its Subsidiaries for each of the three (3) fiscal years immediately preceding the Closing Date, either individually or in (B) unaudited interim financial statements for the aggregateCompany and its Subsidiaries as of July 31, a Material Adverse Effect;
2021, and (C) financial projections of the Company and its Subsidiaries for the next two (2) fiscal years; (ix) UCC searchesa certificate signed by the Chief Financial Officer or the Chief Accounting Officer of the Borrower Agent certifying that, as of a period ending reasonably satisfactory after giving effect to the Administrative Agententering into of the Loan Documents and the consummation of all of the Transactions, listing all effective financing statements which name (A) each Borrower is Solvent and (B) the Borrower or any of its Subsidiaries Loan Parties, taken as debtora whole, together with copies of such financing statements requested by the Administrative Agent;
are Solvent; (x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
; (xi) financial projections an initial Borrowing Base Certificate; (xii) initial written notice of Borrowing; (xiii) delivery of UCC and PPSA financing statements, suitable in form and substance for a period of four Fiscal Years after filing in all places required by applicable law to perfect the Closing Date prepared by management Liens of the BorrowerAdministrative Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable law to perfect the Liens of the Administrative Agent under such Security Instruments as a first priority Lien in form satisfactory and to such other Collateral as the Administrative Agent may require; (xiv) UCC and PPSA search results showing only those Liens as are acceptable to the Administrative Agent and Lenders; (xv) evidence of the payment in full and cancellation of the Existing Agreement, including terminations of UCC and PPSA financing statements filed in connection with the Existing Agreement and other evidence of lien releases and other related matters on terms acceptable to the Administrative Agent; and
(xiixvi) evidence satisfactory to the Administrative Agent of the consummation (in compliance with all applicable laws and regulations, with the receipt of all material governmental, shareholder and third party consents and approvals relating thereto) of the Transactions; (xvii) completion of a Field Exam, asset appraisal, insurance review and legal review; and (xviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Letter of Credit Issuer, the Swing Line Lender or the Required Lenders may reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing . 121 [Matrix] Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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.#85638137
Appears in 1 contract
Samples: Credit Agreement (Matrix Service 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a Swing Line Note executed by each Security Document listed in the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line SublimitSecurity Schedule;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the 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 Nevada and Texaseach jurisdiction required by Section 5.01;
(vi) a favorable opinion opinions of Xxxxxx and Xxxxx, Vxxxxx & Exxxxx LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders may reasonably request, and favorable opinions of special Oklahoma counsel to the Administrative Agent, addressed to the Administrative Agent and its counsel may reasonably requesteach Lender;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower any Loan Party and the validity against the Borrower any 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) 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;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;.
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect, including certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as loss payee under property and casualty insurance policies and naming the Administrative Agent and Lenders as additional insureds under liability insurance policies (other than worker’s compensation, directors & officers’ and other policies not applicable to the Administrative Agent and Lenders);
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management certificate from a Responsible Officer of the Borrower, in substantially the form of Exhibit I hereto, attesting to the Solvency of each Loan Party before and after giving effect to the transactions contemplated by this Agreement;
(xii) a certificate from a Responsible Officer of the Borrower (A) attaching forecasts, in form reasonably satisfactory to the Administrative Agent, of income statements for each of the fiscal years ending December 31, 2011 through December 31, 2015, (B) certifying that such forecasts were prepared in good faith on the basis of assumptions that were fair in light of the existing conditions (subject to the proviso that such forecasts are necessarily based upon professional opinions, estimates and projections and that the Borrower does not warrant that such opinions, estimates and projections will ultimately prove to have been accurate), and (C) certifying as to matters that would be required by Section 302 of Sxxxxxxx-Xxxxx; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid by the Borrower to the Administrative Agent and the Lenders on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement executed by Borrower and Holdings, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a Swing Line Note the Guaranties executed by each of the Guarantors;
(iv) the Security Agreement executed by the Borrower and the Guarantors (other than Holdings) together with:
(A) proper Financing Statements in favor form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Swing Line LenderAdministrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, in a principal amount equal to covering the Swing Line SublimitCollateral described therein;
(ivB) evidence that all other actions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement have been taken (including receipt of duly executed payoff letters and UCC-3 termination statements);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(vvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that the 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 Nevada and Texaseach jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(vivii) a favorable opinion of Xxxxxx and Xxxxx, & Xxxxxx LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
(viiviii) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements June 27, 2010 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;; and
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections for a period , together with the certificates of four Fiscal Years after the Closing Date prepared by management of the Borrowerinsurance, in form satisfactory to 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 constitutes Collateral; and
(xiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Issuer or the Required Lenders reasonably may require.
(bi) The fee set forth in the invitation letter of the Borrower to each Lender and any other 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, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 Holdings shall have occurred on or before June 30received not less than $255,000,000 in proceeds from the sale of the New Senior Notes, 2011.
(e) The and the Borrower and Holdings shall have delivered written confirmation evidence satisfactory to the Administrative Agent demonstrating that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, 2004 Senior Notes have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effecttendered or called by Holdings. Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.01, 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 to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning 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, Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a Swing Line Note executed duly completed Compliance Certificate for the period ending June 30, 2004 signed by the Borrower in favor a Responsible Office of the Swing Line Lender, in a principal amount equal to the Swing Line SublimitBorrower;
(iv) executed counterparts of the Security Agreement, the Pledge Agreement, the Guaranty from each Domestic Subsidiary (other than Excluded Domestic Subsidiaries) and any additional Security Document or Loan Document required by Section 6.12 of this Agreement or any other provision of this Agreement or reasonably requested by the Administrative Agent to carry out the purposes hereof and thereof, sufficient in number for distribution to the Administrative Agent and the Borrower;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(vvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that the 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 Nevada and Texasthe jurisdiction of its organization;
(vivii) a favorable opinion of Xxxxxx and Xxxxx, LLP, internal counsel to the BorrowerLoan Parties and of Xxxxxx, Xxxx & Xxxxxxxx LLP, special counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such the matters concerning the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably requestset forth in Exhibit G;
(viiviii) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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;; and
(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) except as disclosed in the Borrower's SEC Filings made prior to the Closing Date or as otherwise disclosed to the Lenders, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date.
(ixb) UCC searches, as of a period ending reasonably satisfactory Any fees required to be paid by the Borrower to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Lenders or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other fees required to be paid Arranger on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30November 5, 20112004.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning 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 Guaranties, and the applicable Pledge Agreements, sufficient in number for distribution to the Administrative Agent, each Lender Lender, and the BorrowerBorrower together with duplicate (unless more than one original Mortgage is needed for recording, in which event three shall be executed) executed Mortgages for each Initial Borrowing Base Property;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxxx and Xxxxx, LLP, legal counsel to the BorrowerLoan Parties and local counsel to the Loan Parties in the jurisdictions in which the Initial Borrowing Base Properties are located, in each case, addressed to the Administrative Agent and each Lender, as to such matters concerning due formation and applicable good standing of the Borrower Loan Parties and the due execution and enforceability of the Loan Documents as the Administrative Agent and its counsel may reasonably requestDocuments;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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(a5.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Pro Forma Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a duly completed Borrowing Base Report and Compliance Certificate as of the Closing Date, signed by a Responsible Officer of Borrower;
(ix) UCC searches, as the Property Information with respect to each of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentInitial Borrowing Base Properties;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;; and
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xii) such other customary assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Issuer or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of the counsel to Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 IPO shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effectoccurred. Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (American Realty Capital Properties, 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Agreement and the BorrowerGuaranty;
(iiA) Revolving Loan Notes executed by the Borrower in favor of each Revolving Lender requesting a Revolving Note and (B) Term Loan Notes executed by a Borrower in favor of each Term Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower and each other Loan Party is validly existing, existing and in good standing and qualified to engage in business in Nevada and Texasits jurisdiction of organization;
(viv) a favorable opinion of Xxxxxx and XxxxxSkadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all each Loan Party stating that no consents, licenses and or approvals are required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter ended on March 31, 2007, signed by a Responsible Officer of the Borrower;
(ix) UCC searches, as evidence of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name insurance maintained by the Borrower or any of and its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agentsubsidiaries;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;an initial Revolving Loan Notice, if any; and
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borroweran initial Term Loan Interest Rate Selection Notice, in form satisfactory to the Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may requireif any.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other fees Any expenses required to be paid reimbursed on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June September 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect2007. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 (Pzena Investment Management, 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Amendment Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentNotes;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower Company is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 and Xxxxx, LLP, in-house counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xiiviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid by each Borrower on or before the Closing Amendment Effective Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower Company shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Amendment Effective Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Company and the Administrative Agent).
(d) The Closing Amendment Effective Date shall have occurred on or before June 30February 15, 20112014.
(e) The Borrower No “Default” or “Event of Default” under (and as defined in) the Term Credit Agreement or the Note Purchase Agreement shall have delivered written confirmation that all Obligations (as such term defined in exist or would result from the Existing initial Credit Agreement) owing to each Lender (as such term is defined in Extension or from the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect application of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effectproceeds thereof. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Amendment Effective 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning 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 Co-Lead Arrangers, the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, each Security Document, each Guaranty and any other applicable Loan Documents, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texasits jurisdiction of incorporation or formation and, to the extent request by the Administrative Agent, each other jurisdiction where it is qualified to do business;
(viv) a favorable opinion of Xxxxxx and Xxxxx, LLP, counsel to the BorrowerLoan Parties (other than Harlingen Partnership Holdings, Inc., MedCath Cardiology Consulting & Management, Inc., San Antonio Holdings, Inc. and Venture Holdings, Inc.), addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 Parent and 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;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(xviii) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xiiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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
Samples: Credit Agreement (Medcath Corp)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date or immediately prior to the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentNotes;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower Company as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower Company is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower Company is duly organized or formed, and that the Borrower it is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 Xxxxxx and Xxxxx, LLP, (A) counsel to the BorrowerCompany, addressed to the Administrative Agent Agents and each Lender, as to such the matters concerning the Borrower set forth in Exhibit J (which opinion may be rendered by internal Company counsel), and the Loan Documents as (B) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Administrative Agent Agent, addressed to the Agents and its counsel may reasonably requesteach Lender, in form and substance satisfactory to the Agents and each Lender;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by 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;
(viiivi) a certificate signed by a Responsible Officer of the Borrower Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
; and (ixC) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with either (1) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by each Loan Party and the validity against such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management Loan Party of the BorrowerLoan Documents to which it is a party, and such consents, licenses and approvals shall be in form satisfactory to the Administrative Agentfull force and effect, or (2) stating that no such consents, licenses or approvals are so required; and
(xiivii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the unless waived by any L/C IssuerIssuer in respect of any amounts owing in respect of Existing Letters of Credit issued by it, or payment of all accrued costs, fees, expenses and other amounts owing (other than outstanding loans) under the Required Lenders reasonably may requireExisting Credit Agreement.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Applicable Agent, the Borrower Company shall have paid all Attorney Costs fees, charges and disbursements of the Administrative counsel to each Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs fees, charges and disbursements of counsel to each Agent as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Company and the Administrative Applicable Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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.
(d) The Closing Date shall have occurred on or before December 20, 2005.
Appears in 1 contract
Samples: Credit Agreement (Jacobs Engineering Group Inc /De/)
Conditions of Initial Credit Extension. The obligation of each Lender Bank to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative AgentBank’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent Bank and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Bank and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentBank;
(iii) a Swing Line Note executed by the Borrower in favor counterparts of the Swing Line LenderGuaranty, sufficient in a principal amount equal number for distribution to the Swing Line SublimitBank and Borrower;
(iv) executed counterparts of the Contribution Agreement, sufficient in number for distribution to Bank and Borrower;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent Bank may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(vvi) such documents and certifications as the Administrative Agent Bank may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, formed and that the Borrower is and each Guarantor is, validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 and XxxxxDurham Xxxxx & Xxxxxxx, LLPPC, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each LenderBank, as to such matters concerning the Borrower valid existence, good standing, requisite power and authority, due authorization and non-contravention of Organization Documents of each Loan Party and the due execution and delivery of the Loan Documents as the Administrative Agent and its counsel may reasonably requestDocuments;
(viiviii) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 be expected to have, either individually or in the aggregate, have a Material Adverse Effect;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xiixi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders Bank reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative AgentBank, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of the Administrative Agent counsel to Bank (directly to such counsel if requested by the Administrative AgentBank) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 AgentBank).
(d) The Closing Date shall have occurred on or before June 30April 29, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 each Lender Agent and the Lenders to make its any initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specifiedfollowing items, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Agreement and each of the Administrative Agent, each Lender and the BorrowerSecurity Instruments;
(ii) Revolving Loan Notes A Note executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates (including specimen signatures), and/or other certificates of Responsible Officers or the Secretary or Assistant Secretary of the 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 the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the each Borrower is validly existing, in good standing and qualified to engage in business in Nevada its jurisdiction of organization and Texasin any other jurisdiction in which the failure to be so qualified could reasonably be expected to have a Material Adverse Effect, including certified copies of each Loan Party's Organization Documents, shareholders' agreements, certificates of good standing and/or qualification to engage in business from each jurisdiction identified on Schedule 5.01 hereto;
(viv) a favorable opinion opinions of Xxxxxx Xxxxxx Xxxxxxxx LLP, Xxxxxx & Xxxxxxxxx LLP and Xxxxx, XxXxxxxx LLP, counsel to the BorrowerLoan Parties, each addressed to the Administrative Agent and each Lender, its successors and assigns and as to such the matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
(viivi) a certificate certificates of a Responsible Officer Officers of the Borrower Agent or the applicable Loan Parties either (A) attaching copies of identifying all consents, licenses and approvals required in connection with the execution, delivery and performance by the each Borrower and the validity against the Borrower each such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, and attaching true and correct copies thereof or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower Agent certifying (A) that the conditions specified in Sections 4.02(a5.02(a) and (b5.02(b) have been satisfied, satisfied and (B) that there has been no event or circumstance since as to the date matters described in Section 5.01(d);
(viii) (A) audited financial statements of the Audited Financial Statements that has had or could be reasonably expected to haveCompany and its Subsidiaries for each of the three Fiscal Years immediately preceding the Closing Date, either individually or in (B) unaudited interim financial statements for the aggregateCompany and its Subsidiaries as of December 31, a Material Adverse Effect2013, and (C) financial projections of the Company and its Subsidiaries for the next Fiscal Year;
(ix) UCC searchesa certificate signed by the Chief Financial Officer or the Chief Accounting Officer of the Borrower Agent certifying that, as of a period ending reasonably satisfactory after giving effect to the Administrative Agententering into of the Loan Documents and the consummation of all of the Transactions, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtorBorrowers, together with copies of such financing statements requested by the Administrative Agentmeasured on a consolidated basis, are Solvent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections an initial Borrowing Base Certificate as of November 4, 2016;
(xii) initial Committed Loan Notice;
(xiii) delivery of Uniform Commercial Code and/or PPSA financing statements, suitable in form and substance for filing in all places required by applicable law to perfect the Liens of Agent under the Security Instruments as a period first priority Lien as to items of four Fiscal Years after Collateral in which a security interest may be perfected by the Closing Date prepared by management filing of financing statements, and such other documents and/or evidence of other actions (other than Excluded Perfection Actions) as may be reasonably necessary under applicable law to perfect the Liens of Agent under such Security Instruments as a first priority Lien in and to such other Collateral as Agent may require;
(xiv) Uniform Commercial Code search results showing only those Liens as are acceptable to Agent;
(xv) copies of the BorrowerSecond Lien Indebtedness Documents, all certified as true and correct by the Borrower Agent;
(xvi) evidence of the payment in form satisfactory full and cancellation of the Existing Agreement, including terminations of Uniform Commercial Code, PPSA and other financing statements filed in connection with the Existing Agreement (or reasonable assurance thereof) and other evidence of Lien releases and other related matters on terms acceptable to the Administrative AgentAgent (or reasonable assurance thereof); and
(xiixvii) such other assurances, certificates, documents, consents or opinions as The items listed on the Administrative Agent, most recent Documents and Requirements list delivered to the L/C Issuer, or Borrower Agent prior to the Required Lenders reasonably may requireClosing Date.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all Attorney Costs reasonable fees, charges and disbursements of the Administrative 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 Attorney Costs such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent).
(d) The Closing Date Agent shall have occurred on or before June 30be satisfied that after giving effect to (i) the initial Credit Extension hereunder, 2011.
(eii) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect consummation of the Existing Letters Transactions and payment of Credit, which are going to be transferred all fees and deemed issued under this Agreement, have been irrevocably paid expenses in full in cash connection therewith and that each Lender’s Commitments (as such term is defined in iii) any payables stretched materially beyond customary payment practices during the Existing Credit Agreementsix (6) pursuant to the terms of the Existing Credit Agreement have been terminated in full month period prior to the closing and funding of this Agreement; providedClosing Date, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 Availability 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 theretoat least $3,000,000.
Appears in 1 contract
Samples: Credit and Security Agreement (Katy Industries Inc)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender Lender, each Swing Line Lender, and the BorrowerCompany;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender or Swing Line Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentNotes;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 and Xxxxx(A) Fulbright & Jxxxxxxx, LLPL.L.P., counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders may reasonably request, and (B) appropriate local counsel, addressed to the Administrative Agent and its counsel each Lender, as to such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals 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;
(viiivi) a certificate signed by a Responsible Officer of the Borrower Company 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;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(xvii) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xiiviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the any L/C Issuer, any Swing Line Lender, or the Required Lenders reasonably may require.
(b) The fee set forth There shall not have occurred a material adverse change in the invitation letter business, assets, properties, liabilities (actual or contingent), operations, condition (financial or otherwise), or prospects, taken as a whole, of the Borrower Company and its Subsidiaries since December 31, 2005, or in the facts and information regarding such entities as represented to each Lender and any other date.
(c) Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(cd) Unless waived by the Administrative Agent or the Syndication Agent, as applicable, the Borrower Company shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Company and the Administrative Agent and the Syndication Agent).
(de) The Closing Date shall have occurred on or before June September 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect2006. 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 (Grant Prideco 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles fax transmissions (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersLenders unless otherwise specified:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerParent;
(ii) Revolving Loan Notes executed by the Borrower a Note in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a Swing Line Note executed for each Loan Party, (A) its charter (or similar formation document), certified by the Borrower in favor appropriate governmental authority, (B) its bylaws (or similar governing document), (C) resolutions duly adopted by its board of directors (or similar governing body) approving such Loan Party’s execution, delivery and performance of this Agreement and the Swing Line Lenderother Loan Documents to which it is party, in a principal amount equal to the Swing Line Sublimit;
and (ivD) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof of such Loan Party authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, existing and in good standing and qualified to engage in business in Nevada and Texasits jurisdiction of organization;
(viv) a favorable an opinion of Xxxxxx and Xxxxx, Gxxxxxx Procter LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as in form and substance satisfactory to such matters concerning the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably requestthe Required Lenders;
(viivi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all each Loan Party stating that no consents, licenses and or approvals of any Governmental Authority or pursuant to any Material Contract are required in connection with the execution, delivery and performance by the Borrower and the validity against the 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 Borrowers certifying (A) that the conditions specified in Sections 4.01(e) and (f) and Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(xviii) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xiiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid pursuant to any Loan Document on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) payable pursuant to the Loan Documents to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30May 31, 20112016.
(e) The Borrower There shall have delivered written confirmation been no event or circumstance since August 29, 2015 that all Obligations (as such term defined has had or could be reasonably expected to have, either individually or in the Existing Credit Agreementaggregate, a Material Adverse Effect.
(f) owing There shall be no action, suit, investigation or proceeding pending or, to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect knowledge of the Existing Letters of CreditBorrowers, which are going threatened in writing in any court or before any arbitrator or Governmental Authority that has had or could reasonably be expected to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effecta Material Adverse Effect. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Unifirst Corp)
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the 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 the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that each of the Borrower is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 and Xxxxx, LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning in the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably requestform set forth in Exhibit G;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xiiviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require. On the Closing Date, the Administrative Agent will provide the Borrower with a letter stating that each of the conditions set forth in this Section 4.01(a) has been satisfied or waived.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced two Business Days prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 each Fronting Bank, each L/C Issuer and each Lender to make its their respective initial Credit Extension Extensions hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies, facsimile, “.pdf” or facsimiles other electronically transmitted copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in such number for distribution to as the Administrative Agent, each Lender and the BorrowerAgent shall request;
(ii) a Revolving Loan Notes Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texassuch jurisdictions as the Administrative Agent may reasonably request;
(viA) a favorable opinion of Xxxxxx and XxxxxMcAfee & Xxxx, LLP, outside counsel to the Borrower, (B) a favorable opinion of R. Xxxxx Xxxxxxxx, executive vice president and general counsel of the Borrower and (C) a favorable opinion of Xxxxxxx, Xxxxxxxx & Xxxxx, special Bermuda counsel to TMK, each addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel or the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer or Secretary of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and regulatory or other approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 Section 4.01(e) and (f) and Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) the current Debt Ratings.
(viii) evidence that prior to or concurrently with the Restatement Effective Date (A) all outstanding obligations under the Existing Credit Agreement are paid and (B) all outstanding letters of credit issued under the Existing Credit Agreement are being (i) surrendered for cancellation or (ii) amended and/or continued, as applicable, pursuant to Section 2.03(n) hereof;
(ix) UCC searches, a duly completed compliance certificate as of a period ending reasonably satisfactory to the Administrative AgentMarch 31, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, 2014 in form satisfactory to the Administrative Agent, signed by a Responsible Officer of the Borrower and evidencing compliance as of such date with Section 7.11 hereof;
(x) each Existing Lender that is not a Lender under this Agreement shall have executed and delivered to the Administrative Agent an Existing Lender Agreement (and each Lender authorizes the Administrative Agent to enter into such agreements and, without incurring any liability thereunder, consents to the terms thereof); and
(xi) except as the Administrative Agent and the Borrower shall otherwise agree, the Administrative Agent shall have received evidence (which the Borrower shall deliver) in the form of the most current “Bank List” of banks approved by the NAIC, that each Lender is an NAIC Approved Bank; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the Swing Line Lender, the L/C IssuerAdministrator, or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Restatement Effective Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Restatement Effective Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Restatement Effective Date shall have occurred on or before June July 30, 20112014.
(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 either of the Loan Parties, or the Borrower and its Subsidiaries, taken as a whole, since December 31, 2013 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.
(g) Each Several Letter of Credit described on Schedule 2.03 shall have delivered written confirmation that all Obligations (been amended to remove, as such term defined in applicable, the Existing Credit Agreement) owing Lenders as issuers thereof and to each Lender reflect as the issuers thereof the Lenders in accordance with their Applicable Percentages as reflected on Schedule 2.01 hereto (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, or shall have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effectcancelled without a drawing thereon). 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 Restatement Effective Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Torchmark 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerLoan Parties;
(ii) a Revolving Loan Notes Note executed by the Borrower in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a the Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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) a favorable opinion of Xxxxxx and XxxxxLxxxx X. Xxxxxxxxxx, LLP, general counsel to the Borrower, and (B) a favorable opinion of Axxxxxx, Sxxxxxxx & Kxxxx, special Bermuda counsel to TMK, each addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer or Secretary of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;, and (C) the current Debt Ratings.
(ix) UCC searches, as of a period ending reasonably satisfactory to evidence that the Administrative Agent, listing Existing Credit Agreements have been or concurrently with the Closing Date is being terminated and all effective financing statements which name Liens securing obligations under the Borrower Existing Credit Agreements have been or any of its Subsidiaries as debtor, together concurrently with copies of such financing statements requested by the Administrative AgentClosing Date are being released;
(x) evidence that any required regulatory approvals from any Governmental Authority with respect to the transactions contemplated by the Loan Documents, including all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effecthearing orders issued by any regulatory authority;
(xi) financial projections for a period duly completed Compliance Certificate as of four Fiscal Years after the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date prepared Date, signed by management a Responsible Officer of the Borrower, in form satisfactory to the Administrative Agent; and
(xii) such other assurances, assurances certificates, documents, consents or opinions as the Administrative Agent, the Swing Line Lender, the L/C Issuer, or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30November 24, 20112004.
(e) The Borrower There shall not have delivered written confirmation that all Obligations occurred a material adverse change (as such term defined i) in the Existing Credit Agreementbusiness, assets, properties, liabilities (actual or contingent), operations, conditions (financial or otherwise) owing to each Lender or prospects of either of the Loan Parties, or the Borrower and its Subsidiaries, taken as a whole, since December 31, 2003 or (as such term is defined ii) in the Existing Credit Agreementfacts 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) under The absence of any action, suit, investigation or proceeding pending or, to the Existing Credit Agreement, other than Obligations in respect knowledge of the Existing Letters Borrower or any of Creditits Subsidiaries, which are going threatened, in any court or before any arbitrator or governmental authority that could reasonably be expected to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effecta 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
Samples: Credit Agreement (Torchmark Corp)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension Loan hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or facsimiles other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:):
(i) executed counterparts of this Agreement, sufficient in number for distribution to Agreement each properly executed by a Responsible Officer of the Administrative Agent, each Lender signing Loan Party and the BorrowerLenders in such number as the Agent may request;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a partyparty or is to become a party and each in form and substance reasonably satisfactory to the Agent;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Agent may reasonably request as to good standing in its jurisdiction of organization;
(v) such documents favorable opinions of Cains Advocates Limited and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formedXxxxxx & Xxxxxx Attorneys PLLC, and that the Borrower is validly existing, in good standing and qualified to engage in business in Nevada and Texas;
(vi) a favorable opinion of Xxxxxx and Xxxxx, LLP, counsel to the Borrower, each addressed to the Administrative Agent and each LenderLender on the Closing Date, as to such matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel may reasonably request, in form and substance reasonably satisfactory to the Agent;
(viivi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by 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(aSection 4.1(h) and (bi) 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 EffectEffect and (C) to the Solvency of the Loan Parties, on a Consolidated basis, as of the Closing Date after giving effect to the Transactions;
(ixvii) UCC searchessubject to Section 6.15, as of a period ending evidence reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence Agent that all insurance required to be maintained pursuant to Section 6.04 has the Loan Documents and all certificates and endorsements in favor of the Agent required under the Loan Documents have been obtained and is are in effect;
(xiviii) financial projections for a period payoff letters and applicable Lien release documentation (including UCC-3s) from the agents under the MSL Loan Agreement and the NSB Credit Agreement reasonably satisfactory in form and substance to the Agent evidencing that any such loan facilities have been terminated, all obligations paid in full, and all Liens securing obligations of four Fiscal Years after the Loan Parties under such facilities have been or concurrently with the Closing Date prepared are being released;
(ix) the Security Documents (subject to Section 6.15, in the case of Control Agreements (as such term is defined in the Guaranty and Security Agreement)) and all other Loan Documents (to the extent to be executed on the Closing Date), each duly executed by management the applicable Loan Parties;
(x) a copy of the Settlement Agreement;
(xi) stipulations of dismissal of any litigation between Borrower and Xxxxxx Xxxxxxx or Triangulum Partners, LLC signed in escrow by individuals with authority to bind Borrower, Xxxxxx Xxxxxxx and Triangulum Partners, LLC that are satisfactory in form and substance to the Agent, evidencing that any litigation between Borrower and Xxxxxx Xxxxxxx or Triangulum Partners, LLC will be dismissed in its entirety with prejudice upon payment of the sums due under the Settlement Agreement;
(xii) proposed forms of orders agreed to by individuals with authority to bind Borrower, Xxxxxx Xxxxxxx and Triangulum Partners, LLC that shall be filed in any litigation between Borrower and Xxxxxx Xxxxxxx or Triangulum Partners, LLC upon payment of the sums due under the Settlement Agreement that are reasonably satisfactory in form and substance to the Agent to evidence that the litigation will be dismissed in its entirety with prejudice;
(xiii) results of searches or other evidence reasonably satisfactory to the Administrative Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Liens permitted by Section 7.1 and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, in each case satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent for the delivery of such termination statements have been made;
(xiv) all documents and instruments, including Uniform Commercial Code financing statements reasonably requested by the Agent to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents; and
(xiixv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders Agent reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other fees required to be paid on or before the Closing Date shall have been paidWarrant Agreement, and the Fee Letters shall be in full force and effect.
(c) Unless waived duly executed by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)Borrower.
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) absent a Swing Line Note Guaranty Release Event, the Subsidiary Guaranty, duly executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimiteach Subsidiary Guarantor;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as of the Borrower Closing Date as the Administrative Agent may require evidencing the identity, authority and capacity of each such Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that each Loan Party as of the Borrower Closing Date is validly existing, existing and in good standing and qualified to engage in business in Nevada and Texasits state of incorporation or organization and/or domicile;
(viA) a favorable opinion of Xxxxxx and Xxxxx, LLPXxxxx & Xxxxxxx, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders may reasonably request, and (B) a favorable opinion of New York counsel to the Loan Parties, reasonably acceptable to the Administrative Agent, addressed to the Administrative Agent and its counsel each Lender as to such New York Law matters as the Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of each Loan Party as of the Borrower Closing Date either (A) attaching copies of confirming that all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the such Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effectParty have been obtained, 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) the current Debt Ratings;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Existing Credit Agreement has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after or concurrently with the Closing Date prepared by management of is being terminated and that obligations under the Borrower, in form satisfactory to Existing Credit Agreement have been or concurrently with the Administrative AgentClosing Date are being satisfied; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in Any fees (including upfront fees to the invitation letter of the Borrower to each Lender and any other fees Lenders) required to be paid on or before the Closing Date shall have been paid, and the Fee Letters Letter shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June November 30, 20112003.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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
Samples: Credit Agreement (Fidelity National Financial Inc /De/)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Unconditional Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each of Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach jurisdiction where its ownership, lease or operation of properties or the conduct of its business require such qualification, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxxx and Xxxxx, LLP, counsel to the Borrower's counsel, addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 would reasonably be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (C) the current Debt Ratings, if any, and a calculation of the Leverage Ratio as of the last day of the fiscal quarter of Borrower most recently ended prior to the Closing Date; and (D) to the extent Borrower's Debt Rating is not Investment Grade as of the Closing Date, a Borrowing Base Report;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(xviii) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xiix) financial projections for a period of four Fiscal Years after evidence that the Existing Credit Agreement has been or concurrently with the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agentis being terminated; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the any L/C Issuer, Swing Line Lender or the Required Lenders reasonably may require.. EXHIBIT 10.1
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of the counsel to Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of Section 9.0410.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Senior Unsecured Revolving Credit Agreement (Wci Communities Inc)
Conditions of Initial Credit Extension. The obligation of each Lender and the Letter of Credit Issuer to make its any initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agent:
precedent: (a) The Administrative Agent’s receipt of the following, each of which shall following items (except those items that are expressly permitted to be originals or facsimiles (followed promptly by originals) unless otherwise specifieddelivered after the Closing Date pursuant to the Post-Closing Agreement), each properly executed by a Responsible Officer of the Borrowerapplicable Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
its legal counsel: (i) executed counterparts of this Agreement, sufficient in number for distribution to Agreement and each of the Administrative Agent, each Lender and the Borrower;
Security Instruments; (ii) Revolving Credit Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Credit Loan Note, each in a principal amount equal to such Lender’s Commitment;
; (iii) a Swing Line Note executed by the Borrower in favor Secretary’s certificate for each Loan Party certifying as to (A) true and complete copies of all Organizational Documents of such Loan Party attached thereto, (B) resolutions of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates Board of resolutions Directors or other actionorganizational action authorizing execution, delivery and performance of all Loan Documents to which such Loan Party is a party, and (C), incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may require officers (including specimen signatures) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
; (viv) such documents and certifications certification from any applicable Governmental Authority as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada its jurisdiction of organization and Texas;
in any other jurisdiction in which the failure to be so qualified could reasonably be expected to have a Material Adverse Effect, including certificates of good standing and qualification to engage in business in each applicable jurisdiction; (viv) a favorable opinion of Xxxxxx and Xxxxx, LLPXxXxxx & Xxxx, counsel to the BorrowerLoan Parties, and acceptable Canadian and New York counsel to the Loan Parties, each addressed to the Administrative Agent and each LenderLender and their successors and assigns, as to such the matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
; (viivi) a certificate certificates of a Responsible Officer Officers of the Borrower Agent or the applicable Loan Parties either (A) attaching copies of identifying all consents, licenses and approvals required in connection with the execution, delivery and performance by the each Borrower and the validity against the Borrower each such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, and attaching true and correct copies thereof or (B) stating that no such consents, licenses or approvals are so required;
; 121 [Matrix] Credit Agreement #85638137 (viiivii) a certificate signed by a Responsible Officer of the Borrower Agent certifying (A) that the conditions specified in Sections 4.02(a5.02(a) and (b5.02(b) have been satisfied, satisfied and (B) that there has been no event or circumstance since as to the date matters described in Section 5.01(d); (viii) (A) audited financial statements of the Audited Financial Statements that has had or could be reasonably expected to haveCompany and its Subsidiaries for each of the three (3) fiscal years immediately preceding the Closing Date, either individually or in (B) unaudited interim financial statements for the aggregateCompany and its Subsidiaries as of July 31, a Material Adverse Effect;
2021, and (C) financial projections of the Company and its Subsidiaries for the next two (2) fiscal years; (ix) UCC searchesa certificate signed by the Chief Financial Officer or the Chief Accounting Officer of the Borrower Agent certifying that, as of a period ending reasonably satisfactory after giving effect to the Administrative Agententering into of the Loan Documents and the consummation of all of the Transactions, listing all effective financing statements which name (A) each Borrower is Solvent and (B) the Borrower or any of its Subsidiaries Loan Parties, taken as debtora whole, together with copies of such financing statements requested by the Administrative Agent;
are Solvent; (x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
; (xi) financial projections an initial Borrowing Base Certificate; (xii) initial written notice of Borrowing; (xiii) delivery of UCC and PPSA financing statements, suitable in form and substance for a period of four Fiscal Years after filing in all places required by applicable law to perfect the Closing Date prepared by management Liens of the BorrowerAdministrative Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable law to perfect the Liens of the Administrative Agent under such Security Instruments as a first priority Lien in form satisfactory and to such other Collateral as the Administrative Agent may require; (xiv) UCC and PPSA search results showing only those Liens as are acceptable to the Administrative Agent and Lenders; (xv) evidence of the payment in full and cancellation of the Existing Agreement, including terminations of UCC and PPSA financing statements filed in connection with the Existing Agreement and other evidence of lien releases and other related matters on terms acceptable to the Administrative Agent; and
(xiixvi) evidence satisfactory to the Administrative Agent of the consummation (in compliance with all applicable laws and regulations, with the receipt of all material governmental, shareholder and third party consents and approvals relating thereto) of the Transactions; (xvii) completion of a Field Exam, asset appraisal, insurance review and legal review; and (xviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Letter of Credit Issuer, the Swing Line Lender or the Required Lenders may reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing . 122 [Matrix] Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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.#85638137
Appears in 1 contract
Samples: Credit Agreement (Matrix Service 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or electronic pdfs (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to 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 the identity, authority and capacity 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;
(viv) 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 Nevada and TexasIllinois;
(viv) a favorable opinion of Xxxxxx and Xxxxx, Sidley Austin LLP, counsel to the 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 as the Administrative Agent and its counsel may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by 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 as of the Closing Date certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedsatisfied or waived (which such waiver must be in writing), and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could reasonably be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) that neither the Borrower nor any Subsidiary is in default under or with respect to any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and (D) that the Borrower has disclosed to the Administrative Agent and the Lenders all matters known to any Responsible Officer that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect;
(viii) a duly completed Compliance Certificate as of the Closing Date, signed by a Responsible Officer of the Borrower, certifying as to no Default under the terms of this Agreement and evidencing compliance with the Section 7.10;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect; CREDIT AGREEMENT — Page 58
(x) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated;
(xi) financial projections for a period of four Fiscal Years after evidence that the Existing U.S. Cellular Credit Agreement has been or concurrently with the Closing Date prepared is being terminated and concurrent consummation of a related facility among United States Cellular Corporation, Toronto Dominion (New York) LLC, as administrative agent and the lenders party thereto;
(xii) delivery of a duly completed and executed Federal Reserve Form U-1, Statement of Purpose for an Extension of Credit Secured by management of the Borrower, in form satisfactory to the Administrative AgentMargin Stock; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid by the Borrower pursuant to the Fee Letters on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs reasonable and invoiced fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such invoiced fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 AgentAgent in accordance with the terms of this Agreement).
(d) The Closing Date shall have occurred on or before June 30January 15, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 (Telephone & Data Systems Inc /De/)
Conditions of Initial Credit Extension. The effectiveness of this Agreement, the amendment and restatement of the Original Credit Agreement and the obligation of the L/C Issuer and each Lender (if applicable) to make its initial the Credit Extension hereunder requested to be made by it on the Closing Date is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the BorrowerCompany, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) Revolving Loan Notes a Note executed by the Borrower Company in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a Swing Line Note the Escrow Agreement, duly executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimiteach party thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower Company as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a partyDocuments;
(v) such all trust, corporate, partnership, limited liability company and legal proceedings of the Company authorizing the transactions contemplated by this Agreement, all Organization Documents of the Company and the other documents in effect on the Closing Date, and all information and copies of all documents and certifications as papers, including records of corporate and partnership proceedings, governmental approvals, good standing certificates and bring-down telegrams, if any, which the Administrative Agent may have reasonably require requested in connection therewith, such documents and papers where appropriate to evidence that the Borrower is duly organized be certified by proper corporate, partnership or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in Nevada and Texasgovernmental authorities;
(vi) a favorable opinion of Xxxxxx and Xxxxx, Hogan Lovells US LLP, special counsel to the BorrowerCompany, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to such matters concerning the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably requestAgent;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by 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[intentionally omitted];
(viii) a certificate signed by a Responsible Officer of the Borrower Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedsatisfied and immediately prior to the Closing Date there exists no Default or Event of Default under the Original Credit Agreement, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse EffectEffect and (C) the current Debt Rating;
(ix) UCC searches, a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Company ended on September 30, 2022 signed by a period ending reasonably satisfactory to Responsible Officer of the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentCompany;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect[intentionally omitted];
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent[intentionally omitted]; and
(xii) such other assurances, certificates, documents, documents or consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and Any fees required hereunder or under any other fees required Loan Document (including pursuant to the Fee Letter) to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower Company shall have paid all Attorney Costs reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Company and the Administrative Agent).
(d) The On the Closing Date Date, no litigation by any entity (private or governmental) shall be pending or threatened (i) with respect to any Loan Document or the transactions contemplated thereby or (ii) which the Administrative Agent or the Lenders shall determine could reasonably be expected to have occurred on or before June 30, 2011a Material Adverse Effect.
(e) There shall have been delivered to the Administrative Agent: (i) a solvency certificate in the form of Exhibit K, addressed to the Administrative Agent and each of the Lenders and dated the Closing Date from an Authorized Financial Officer of the Company certifying as to the solvency of the Company and its Subsidiaries taken as a whole and the Company on a stand-alone basis and (ii) if requested by the Administrative Agent, such information regarding the compliance by the Company with the requirements of Section 6.04 for the business and properties of the Company and its Subsidiaries.
(f) The Administrative Agent shall have received the financial statements and the Projections referred to in Section 5.05(d).
(g) [intentionally omitted].
(i) Since December 31, 2021, nothing shall have occurred (and neither the Administrative Agent nor any of the Lenders shall have become aware of any facts, conditions or other information not previously known) which the Administrative Agent or the Required Lenders shall determine has had, or believe could reasonably be expected to have, a Material Adverse Effect.
(ii) On or prior to the Closing Date, all necessary governmental (domestic and foreign) and material third party approvals and consents in connection with the transactions contemplated by the Loan Documents to occur on or prior to the Closing Date and otherwise referred to herein or therein shall have been obtained and remain in effect, and all applicable waiting periods shall have expired without any action being taken by any competent authority which restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents. Additionally, there shall not exist any judgment, order, injunction or other restraint issued or filed or a hearing seeking injunctive relief or other restraint pending or notified prohibiting or imposing materially adverse conditions upon the transactions contemplated by the Loan Documents to occur on or prior to the Closing Date.
(i) (i) Upon the reasonable request of any Lender made at least ten days prior to the Closing Date, the Borrower shall have delivered written confirmation that all Obligations provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Act, in each case at least three days prior to the Closing Date and (ii) at least three days prior to the Closing Date, if the Borrower qualifies as such term defined in a “legal entity customer” under the Existing Credit Agreement) owing Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender (as such term is defined that so requests, a Beneficial Ownership Certification in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant relation to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents Borrower.
(as such term is defined in the Existing Credit Agreementj) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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. Notwithstanding anything to the contrary contained herein, if the conditions set forth above in this Section 4.01 have not been satisfied or waived by January 31, 2023, the Signature Pages (as defined in the Escrow Agreement) shall be promptly returned by the escrow agent named therein to the applicable parties that delivered such Signature Pages pursuant to the Escrow Agreement, and this Agreement shall not become effective and the Closing Date shall not occur.
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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany and, if Advance Funding Arrangements shall exist with respect to funding on the Closing Date, executed Advance Funding Documentation in form and number reasonably acceptable to the Administrative Agent;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentNotes;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower Loan Party is validly existing, in good standing (or equivalent concept, as, and to the extent, applicable, in the relevant jurisdiction) and qualified to engage in business in Nevada its jurisdiction of formation or incorporation and Texaseach other jurisdiction reasonably requested by the Administrative Agent;
(viv) a favorable opinion of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxxx, Xxxx LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, covering such matters concerning the Borrower and relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent and its the Lenders shall reasonably request and such opinion shall expressly allow permitted successors and assigns of the Administrative Agent and the Lenders to rely on such opinion;
(vi) a favorable opinion of Stek Advocaten B.V., special counsel may to the Administrative Agent, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, covering such matters relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent and the Lenders shall reasonably request;
(vii) a certificate favorable opinion of a Responsible Officer of Xxxxx & XxXxxxxx Amsterdam N.V., counsel to PAREXEL International Holding B.V., addressed to the Borrower either (A) attaching copies of all consentsAdministrative Agent and each Lender, licenses in form and approvals required in connection with substance reasonably satisfactory to the execution, delivery and performance by the Borrower Administrative Agent and the validity against the Borrower of Lenders, covering such matters relating to the Loan Documents to which it is a party, and such consents, licenses the transactions contemplated thereby as the Administrative Agent and approvals the Lenders shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredreasonably request;
(viii) a favorable opinion of Xxxxxxxx, counsel to PAREXEL International (IRL) Limited, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, covering such matters relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent and the Lenders shall reasonably request;
(ix) a favorable opinion of Xxxxxx Xxx, special counsel to the Administrative Agent, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, covering such matters relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent and the Lenders shall reasonably request;
(x) a certificate signed by a Responsible Officer of the Borrower Company 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 havehad, either individually or in the aggregate, a Material Adverse Effect;
(ixxi) UCC searches, as certificate of a period ending reasonably satisfactory Financial Officer the Company, certifying that the Company is, and the Company and its Subsidiaries on a consolidated basis are, Solvent both before and after giving effect to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentTransactions;
(xxii) evidence that all insurance required to be maintained pursuant to a certificate signed by a Responsible Officer of PAREXEL International (IRL) Limited regarding Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management 239 of the BorrowerIrish Companies Act 2014 (as amended) and (b) a certificate signed by a Responsible Officer of PAREXEL International (IRL) Limited confirming that none of the proceeds of the Loans and none of the Letters of Credit have been used, will be used, is being used or will be used at any time in form satisfactory to any way which would constitute “financial assistance” within the Administrative Agentmeaning of, and as prohibited by Section 82 of the Irish Companies Xxx 0000 (as amended) (“Section 82”) or which would result in the Loan Documents (including without limitation the collateral, guarantees and indemnities thereby created) contravening Section 82; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders any Lender reasonably may require.
(bi) The fee set forth in the invitation letter of the Borrower to each Lender and any other All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid, (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid and the Fee Letters shall be in full force and effect.
(ciii) Unless unless waived by the Administrative Agent, the Borrower Company shall have paid all Attorney Costs reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent).
(c) All accrued interest, fees and other charges to the extent invoiced prior Closing Date under the Existing Credit Agreement shall have been paid to or on the Closing DateAdministrative Agent for the account of the Lenders, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower L/C Issuer and the Administrative Agent)Swing Line Lender.
(d) The Closing Date Arrangers shall have occurred on or before June 30received all documentation and other information that the Arrangers may reasonably request in order to comply with any applicable “know your customer” and anti-money-laundering rules and regulations, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in including, without limitation, the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effectPATRIOT Act. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, (i) for purposes of determining compliance with the conditions specified in this Section 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 theretothereto and (ii) in the event that Advance Funding Arrangements shall exist, the delivery by any Lender (x) of funds pursuant to such Advance Funding Arrangements (“Advance Funds”) and (y) its signature page to this Agreement shall constitute the request, consent and direction by such Lender to the Administrative Agent (unless expressly revoked by written notice from such Lender received by the Administrative Agent prior to the earlier to occur of funding or the Administrative Agent’s declaration that this Agreement is effective) to withdraw and release to the Borrowers on the Closing Date the applicable funds of such Lender to be applied to the funding of Loans by such Lender in accordance with Section 2.02 upon the Administrative Agent’s determination (made in accordance with and subject to the terms of this Agreement) that it has received all items expressly required to be delivered to it under this Section 4.01.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Subsidiary Guaranty, in each case sufficient in number for distribution to the Administrative Agent, each Lender Lender, Parent, and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 and Xxxxx, LLPXxxxxxxx Xxxxxx, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to such the matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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(a6.02(a) and (b) have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a certificate signed by a Responsible Officer of Parent certifying (A) pro forma compliance with all financial covenants set forth in Section 9.15; (B) no action, suit, investigation or proceeding is pending or, the knowledge of any Loan Party, threatened in any court or before any arbitrator or governmental authority related to the transactions contemplated by this Agreement or that could reasonably be expected to have a Material Adverse Effect; and (C) that on the Closing Date after giving effect to any funding of the Loans on the Closing Date, (i) the Total Revolving Credit Outstandings do not exceed that Maximum Availability and (ii) the Total Outstandings do not exceed the Unencumbered Borrowing Base;
(ix) UCC searches, a duly completed Unencumbered Borrowing Base Report and Compliance Certificate (prepared on a pro forma basis to take into account the Loans made on the Closing Date and payoff and termination of the Existing Credit Facilities) as of the last day of the fiscal quarter of Borrower ended on December 31, 2014, signed by a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Responsible Officer of Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agentand Parent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections for a period evidence of four Fiscal Years after the Closing Date prepared by management termination of the Borrower, in form Existing Credit Facilities reasonably satisfactory to the Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Issuer or the Required Lenders may reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of the counsel to Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.0411.03, for purposes of determining compliance with the conditions specified in this Section 4.016.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The U.S. Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning 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 U.S. Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative AgentSecurity Agreement, each Lender the Pledge Agreement and the BorrowerGuaranties;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s CommitmentNotes;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent Agents 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 such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent Agents may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that each of the Borrower Loan Parties is validly existing, in good standing standing, as applicable in their respective jurisdictions of formation, and qualified to engage in business in Nevada and Texaseach jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) such executed documents as the U.S. Administrative Agent may require to perfect the Lenders' first priority security interest in the Collateral;
(vi) evidence that the U.S. Administrative Agent, on behalf of the Lenders, shall have a perfected, first priority interest in the Collateral, subject to the Liens set forth in Schedule 7.01;
(vii) favorable opinion opinions of Xxxxxx Xxxx LLP and XxxxxXxXxxxx and Xxxxxx, LLP, counsel counsels to the BorrowerLoan Parties, addressed to the Administrative Agent Agents and each Lender, as to the matters set forth in Exhibit G and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(viiviii) a certificate of a Responsible Officer of the Borrower Company either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower Loan Parties and the validity against the Borrower Loan Parties of the Loan Documents to which it is a partyDocuments, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiiix) a certificate signed by a Responsible Officer of the Borrower Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
, and (ixC) UCC searchesthat there is no action, as of a period ending reasonably satisfactory suit, investigation or proceeding pending or, to the Administrative Agentknowledge of the Borrowers, listing all effective financing statements which name the Borrower threatened in any court or before any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agentarbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for calculations certified by a period of four Fiscal Years after the Closing Date prepared by management Responsible Officer of the Borrower, in form satisfactory to Company demonstrating compliance with the Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) The fee financial covenants set forth in the invitation letter of the Borrower to each Lender and any other fees required to be paid Section 7.11 on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) a Pro Forma Basis after giving effect to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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.Meridian Acquisition;
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, Agreement and each Lender and the BorrowerGuaranty;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting that has requested a Revolving Loan Note, each Note at least two Business Days in a principal amount equal to such Lender’s Commitmentadvance of the Closing Date;
(iii) a Swing Line Note except as contemplated by Section 6.13(a)(ii), each Collateral Document set forth on Schedule 1.01A, duly executed by each Loan Party thereto, together with:
(A) certificates, if any, representing the Borrower Pledged Equity referred to therein accompanied by undated stock powers executed in favor of blank and instruments evidencing the Swing Line LenderPledged Debt indorsed 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 principal amount equal manner reasonably satisfactory to the Swing Line SublimitAdministrative Agent;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the 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 the Borrower such Loan Party is a partyparty or is to be a party on the Closing Date;
(v) such documents opinion from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, New York counsel to the Loan Parties in form and certifications as substance reasonably satisfactory to 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 Nevada and TexasAgent;
(vi) a favorable opinion opinions of Xxxxxx local counsel for the Loan Parties in Tennessee, New Jersey and Xxxxx, LLP, counsel to the Borrower, addressed Florida in form and substance reasonably satisfactory to the Administrative Agent and each Lender, as to such matters concerning the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably requestAgent;
(vii) a certificate attesting to the Solvency of the Loan Parties (taken as a Responsible whole) after giving effect to the Transaction, from the Chief Financial Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals 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 requiredBorrower;
(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;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance (including title insurance) required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to effect and that the Administrative AgentAgent has been named as loss payee under each insurance policy as to which the Administrative Agent shall have requested to be so named; and
(xiiix) such other assurancesa Committed Loan Notice or Letter of Credit Application, certificatesas applicable, documents, consents or opinions as relating to the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may requireinitial Credit Extensions.
(b) The fee set forth in the invitation letter of the Borrower to each Lender All fees and any other fees expenses required to be paid on or before hereunder and invoiced at least three Business Days prior to the Closing Date shall have been paid, and the Fee Letters shall be paid in full force and effectin cash or offset against the proceeds of the Facilities.
(c) Unless waived by Prior to or simultaneously with the Administrative Agentinitial Credit Extensions, the Borrower shall have paid all Attorney Costs of terminated the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (Existing Credit Agreement; provided that such estimate Letters of Credit issued under the Existing Credit Agreement shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)be deemed issued hereunder.
(d) 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, stockholders’ equity and cash flows of Holdings 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 in each case shall have occurred on or before June 30, 2011be prepared in accordance with GAAP.
(e) The Holdings, the Borrower and each of the Guarantors shall have delivered written confirmation that all Obligations (as such term defined provided the documentation and other information reasonably requested in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full writing prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 Closing Date by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender or the Joint Bookrunners in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least five (5) days prior to the proposed Closing Date specifying its objection theretoDate.
(f) Each of the Term Loans and the Revolving Credit Facility shall have been rated by each of Standard & Poor’s and Xxxxx’x.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each Lender the Lenders to make its the initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, 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 Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this AgreementAgreement and the other Loan Documents, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrowers;
(ii) Revolving Loan Notes a Note executed by the Borrower Borrowers in favor of each Lender requesting that requests a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a Swing Line Note executed by amendments to such other Loan Documents as Administrative Agent may reasonably require to effect the terms of this Agreement, including, if the Borrower in favor has adopted or has any trademarks that are registered with the United States Patent and Trademark Office (“USPTO”) and are not covered by a prior filing of Administrative Agent’s security interest therein with the Swing Line LenderUSPTO, in a principal amount equal supplemental grant with respect to the Swing Line Sublimitsuch trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the such Borrower is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the each Borrower is duly organized or formed, and that the each Borrower is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(vi) a favorable opinion or opinions of Xxxxxx and Xxxxx, LLP, counsel to the BorrowerBorrowers, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H and such other matters concerning the Borrower Borrowers and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(vii) a certificate of each Borrower signed by a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower by, and the validity against the against, such Borrower of the Loan Documents to which it is a party, and such which 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 of each Borrower 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;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing evidence that all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence Insurance Requirements have been met and that all insurance required to be maintained pursuant to Section 6.04 has been obtained and thereto is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Issuer or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the 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 Nevada and Texaseach 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 and Xxxxx, Xxxxxxx Procter LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, covering such matters concerning the Borrower and relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent and its the Lenders shall reasonably request;
(vi) a favorable opinion of Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, local Alabama counsel may to the Loan Parties, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, covering such matters relating to the Loan Documents and the transactions contemplated thereby as the Administrative Agent and the Lenders shall reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower each Loan Party and the validity against the Borrower each Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (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 quarterly financial statements delivered pursuant to Section 6.01(b) for the fiscal quarter ended June 30, 2011 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;; and
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 (Athenahealth Inc)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Loan Notes Note executed by the Borrower in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a the duly executed Swing Line Note executed by payable to the Borrower in favor order of the Swing Line Lender, Lender in a principal the amount equal to 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 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;
(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 Material Subsidiary is validly existing, existing and in good standing and qualified to engage in business in Nevada and Texasits state of incorporation and/or domicile;
(vi) a favorable opinion of Xxxxxx and Xxxxx, LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(vii) a favorable opinion of Xxxxx X. Sudbury, Esq., in-house counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(viii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by 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 the Borrower certifying (A) that the conditions specified in Sections Section 4.02(a) and (b) have been satisfied, ; and (B) that that, as of the Closing Date, 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 (ixC) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agentcurrent Debt Ratings; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Issuers or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and including any accrued fees pursuant to the Fee Letters shall be in full force and effectExisting Credit Agreement.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30May 31, 20112005.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The the Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the BorrowerLoan Parties, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Agreement and the Borrowerall Collateral Documents;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require authorizing such Loan Party to enter into the transactions contemplated by this Agreement and evidencing the identity, authority and capacity 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 such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(viv) a favorable opinion of Xxxxxx and Xxxxx, LLP, counsel to the Borrower, Loan Parties acceptable to the Administrative Agent (including local counsel opinions as requested by the Administrative Agent) addressed to the Administrative Agent and each Lender, as to such the matters set forth concerning the Borrower Loan Parties and the Loan Documents as in form and substance satisfactory to the Administrative Agent and its counsel may reasonably requestAgent;
(viivi) a certificate of a Responsible Officer of the Borrower certifying: (A) either (Ax) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower Loan Parties and the validity against the Borrower Loan Parties 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;
, (viii) a certificate signed by a Responsible Officer of the Borrower certifying (AB) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (BC) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ixvii) UCC searches(A) the Audited Financial Statements, as (B) audited financial statements of Holdings and its Subsidiaries for the 2009 and 2010 fiscal years, (C) unaudited financial statements of Holdings and its Subsidiaries for the Reference Period ended September 8, 2012, and (D) financial projections and business assumptions including forecasts prepared by management of the Borrower of balance sheets, income statements and cash flow statements on a period ending reasonably quarterly basis for the 2013 fiscal year and on an annual basis for each year thereafter through the Maturity Date, each in form satisfactory to the Administrative Agent, listing all effective financing statements which name Agent and the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentLenders;
(xviii) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effecteffect (which insurance shall be acceptable to the Administrative Agent and the Lenders), together with insurance binders or other satisfactory 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 liabilities, assets and properties of the Loan Parties;
(xiix) financial projections for a period of four Fiscal Years after evidence in form and substance reasonably satisfactory to the Closing Date prepared by management Administrative Agent that the Collateral Documents shall be effective to create in favor of the BorrowerAdministrative Agent, on behalf of the Secured Parties, a legal, valid and enforceable first priority security interest in and Lien upon the Collateral. All filings, recordings, deliveries of instruments and other reasonable actions necessary or desirable in the opinion of the Administrative Agent to perfect, protect and preserve such security interests shall have been duly effected;
(x) a completed and fully-executed Perfection Certificate for each of the Loan Parties, the results of UCC, tax lien, bankruptcy and litigation searches (and the equivalent thereof in all applicable foreign jurisdictions) with respect to the Loan Parties and the Collateral indicating no Liens other than Permitted Liens and otherwise in form and substance satisfactory to the Administrative Agent; andand copies of duly filed UCC-1 forms for each of the Loan Parties in each appropriate jurisdiction and office under the UCC;
(xi) a duly completed Compliance Certificate in form and detail satisfactory to the Administrative Agent and the Lenders, signed by a Responsible Officer of the Borrower, as of September 8, 2012 (based upon the unaudited financial statements of Holdings and its Subsidiaries for the Reference Period ending September 8, 2012), after giving effect to the Loans made hereunder on the Closing Date, evidencing pro forma compliance with each of the financial covenants set forth in Section 7.11 hereof (assuming such financial covenants were in effect as of September 8, 2012);
(xii) satisfactory evidence that, simultaneously with and upon the application of the proceeds of the Loans to be advanced hereunder on the Closing Date, all indebtedness and other obligations outstanding under the Existing Credit Agreement (and all Liens related thereto) will have been paid and satisfied in full and terminated in accordance with the terms thereof or otherwise rolled into the Obligations under this Agreement;
(xiii) certified copies of those documents executed in connection with all Subordinated Debt outstanding on the Closing Date and identified on Schedule 4.01(a)(xiii); and
(xiv) such other assurances, environmental reports, other reports, field audits, audits, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Agent or the Required Lenders reasonably may require.
(b) The fee set forth absence of any event or condition since the date of the Audited Financial Statements that has had or could be reasonably expected, either individually or in the invitation letter aggregate, to have a Material Adverse Effect.
(c) The absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Loan Parties, threatened in any court or before any arbitrator or governmental authority that would reasonably be expected to have a Material Adverse Effect.
(d) The Lenders shall have completed a due diligence investigation of the Borrower and the Guarantors in scope, and with results, satisfactory to each Lender the Lenders.
(e) Arrangements completely satisfactory to the Administrative Agent have been made for the payment at closing of all accrued fees and any other fees expenses of the Administrative Agent required to be paid on or before prior to the Closing Date shall have been paid, made (including the reasonable fees and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs expenses of counsel for the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts ) and arrangements completely satisfactory to the Arranger for the payment of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or the fees to be incurred by it through paid on or prior to 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in to the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) Arranger pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effectFee Letter. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Agreement and the BorrowerGuaranty;
(iiA) Revolving Loan Notes executed by the Borrower in favor of each Revolving Lender requesting a Revolving Note and (B) Term Loan Notes executed by a Borrower in favor of each Term Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower and each other Loan Party is validly existing, existing and in good standing and qualified to engage in business in Nevada and Texasits jurisdiction of organization;
(viv) a favorable opinion of Xxxxxx and XxxxxSkadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all each Loan Party stating that no consents, licenses and or approvals are required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter ended on March 31, 2007, signed by a Responsible Officer of the Borrower;
(ix) UCC searches, as evidence of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name insurance maintained by the Borrower or any of and its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agentsubsidiaries;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;an initial Revolving Loan Notice, if any; and
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borroweran initial Term Loan Interest Rate Selection Notice, in form satisfactory to the Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may requireif any.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other fees Any expenses required to be paid reimbursed on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June September 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect2007. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 (Pzena Investment Management, 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning 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, each of the Security Instruments, the Subsidiary Guaranty and the Mid-State Homes Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes executed by the Borrower in favor of each Revolving Lender requesting such a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a Swing Line Note Term Loan Notes executed by the Borrower in favor of the Swing Line Lender, in each Term Loan Lender requesting such a principal amount equal to the Swing Line SublimitNote;
(iv) such certificates of resolutions or other action, incumbency certificates (including specimen signatures), and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the 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 Nevada (A) its jurisdiction of formation and Texas(B) in Alabama if the Borrower or such Loan Party is formed in a jurisdiction other than Alabama but has assets or operations in Alabama, including in each such case certified copies of each Loan Party’s Organization Documents, shareholders’ agreements, certificates of good standing and/or qualification to engage in business;
(vi) a favorable opinion of Xxxxxx and Xxxxx, Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the BorrowerLoan Parties, and appropriate local counsel to the Loan Parties, each addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of identifying all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower each Loan Party and the validity against the Borrower each such Loan Party of the Loan Documents to which it is a party, and stating that such consents, licenses and approvals shall be in full force and effect, and attaching true and correct copies thereof 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 certifying:
(A) that the conditions specified in Sections 4.02(a5.02(a) and (b) have been satisfied, and ,
(B) as to the matters described in Section 5.01(d);
(C) that none of the Merger Documents (including any condition to consummation of the Merger) has been altered, amended, waived or otherwise changed or supplemented since their execution on June 17, 2005, in any respect materially adverse to the Lenders, except to the extent agreed to by prior written consent of the Arrangers, which consent shall not be unreasonably withheld;
(D) that the Merger has been consummated prior to, or is being consummated substantially simultaneously with, the Closing Date, in accordance with the terms of the Merger Documents (only as amended, altered, waived or otherwise changed in compliance with subpart (D) above);
(E) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or material adverse change in the aggregate, a Material Adverse Effectfacts and information regarding the Loan Parties as represented to date;
(ix) UCC searches, as of a period ending reasonably evidence satisfactory to the Administrative AgentArrangers of the consummation, listing prior to or substantially simultaneously with the occurrence of the Closing Date, of each of the following, in each case in compliance with all effective financing statements which name applicable laws and regulations, with the receipt of all necessary material governmental, shareholder and third party consents (including Xxxx-Xxxxx-Xxxxxx clearance) and approvals: (A) the creation of New Holdco and the transfer of the Equity Interests of US Pipe and of JW Mergerco thereto, such that after giving effect thereto (but prior to giving effect to the Merger and to the US Pipe Contribution) New Holdco is a direct subsidiary of the Borrower and JW MergerCo, Inc. and US Pipe are direct Subsidiaries of New Holdco, (B) the Entity Conversions, including the filing of any certificates of conversion required or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent, (C) the US Pipe Contribution in accordance with the terms of, and such that after giving effect thereto US Pipe is a “Restricted Subsidiary” under, the Indentures for both the Xxxxxxx Water Products Notes and the Xxxxxxx Group Notes, and otherwise on terms and conditions reasonably satisfactory to the Arrangers, (D) the receipt by New Holdco of not less than $400,000,000 of net proceeds from the Dividend Distribution and of not less than $20,000,000 of net proceeds from the Subordinated New Holdco Note, and the application of all such proceeds as consideration for the Merger, (E) the refinancing (in an amount sufficient, inter alia, to support the tender, defeasance or satisfaction and discharge of the Xxxxxxx Group Second Lien Notes), termination and payment in full of all obligations outstanding under the Existing Xxxxxxx Credit Agreement with the Replacement Xxxxxxx Facilities, and (F) the Put Backstop Commitment Letter Amendment;
(x) a certificate signed by the Chief Financial Officer of the Borrower certifying that after giving effect to the entering into of the Loan Documents, the termination of the Existing Credit Agreement, and the consummation of all of the Transactions, the Borrower and its Subsidiaries, measured on a consolidated basis, are Solvent;
(xi) evidence satisfactory to the Arrangers that the Existing Credit Agreement has been or concurrently with the Closing Date 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) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xixiii) financial projections an initial Revolving Loan Notice, if any;
(xiv) an initial Term Loan Interest Rate Selection Notice, if any;
(xv) delivery of Uniform Commercial Code financing statements suitable in form and substance for a period of four Fiscal Years after filing in all places required by applicable law to perfect the Closing Date prepared by management Liens of the BorrowerAdministrative Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable law to perfect the Liens of the Administrative Agent under such Security Instruments as a first priority Lien in form satisfactory and to such other Collateral as the Administrative Agent may require, including without limitation the delivery by the Borrower of all certificates evidencing Pledged Interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(xvi) Mineral Rights Mortgages and such Mortgaged Coal Property Support Documents as the Administrative Agent may request with respect to each lease or other grant of mineral rights as to which the Borrower or a Guarantor is a lessee or grantee, with such exceptions as are agreed by the Arrangers;
(xvii) with respect to those parcels of real property set forth on Schedule 3.01, a Mortgage and such Mortgaged Property Support Documents as the Administrative Agent may request;
(xviii) Uniform Commercial Code search results showing only those Liens as are acceptable to the Administrative Agent; andLenders;
(xiixix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders may reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date Administrative Agent shall have occurred on or before June 30be satisfied that after giving effect to the initial Credit Extension hereunder, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing remaining amount available to each Lender (as such term is defined in the Existing Credit Agreement) be drawn under the Existing Revolving Credit Agreement, other Facility shall not be less than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect$112,500,000. Without limiting the generality of the provisions of Section 9.0410.04, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving a Committed Loan Notes Note executed by the Borrower in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) and a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iviii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the 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 Nevada and Texasits jurisdiction of organization;
(viv) a favorable opinion of Xxxxxx and XxxxxWittner, LLPPoger, Spewak, Maylack & Xxxxxxx, P.C., counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning the Borrower Loan Parties and --------- the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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;, and (C) as to the matters described in Section 4.01(e); ---------------
(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 is no event event, ------- --- circumstance, action, suit, investigation or circumstance since proceeding pending or, to the date best of the Audited Financial Statements Borrower's knowledge, threatened in any court or before any arbitrator or Governmental Authority since October 31, 2002 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(xviii) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xiA) the Audited Financial Statements of the Borrower and its Subsidiaries, and the 2001 Audited Financial Statements of the Borrower and its Subsidiaries, all audited and opined on by PricewaterhouseCoopers LLP and prepared in conformity with GAAP, (B) the TAMSCO Financial Statements, all audited and opined on by McGladrey & Xxxxxx, LLP and prepared in conformity with GAAP, and (C) such other financial projections for a period of four Fiscal Years after information and information relating to the Transaction as the Administrative Agent may reasonably request;
(x) evidence that the Existing Credit Facility has been or concurrently with the Closing Date prepared by management of the Borroweris being terminated, in form satisfactory to the Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter all indebtedness and obligations of the Borrower to each Lender and any its Subsidiaries incurred thereunder, and under the other fees required to be paid documents executed and delivered in connection therewith, have been, or with the initial Credit Extension hereunder on or before the Closing Date shall have been paidwill be, repaid and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30its Subsidiaries released from all liability thereunder except such as by their express terms survive such repayment and termination, 2011.
(e) The Borrower shall have delivered written confirmation that and all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) Liens securing obligations under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, Facility have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance or concurrently with the conditions specified in this Section 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.are being terminated or released, as applicable;
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerCompany;
(ii) Revolving Loan Notes executed by the Borrower Borrowers in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;Notes; 79 67484784_8
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Company and each Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Company and each Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 written opinions of Xxxxxx the Chief Legal Officer of the Borrowers, of the Company’s Dutch counsel, and Xxxxx, LLP, counsel to of the BorrowerBorrowers’ outside counsels, addressed to the Administrative Agent and each Lenderthe Lenders, in substantially the forms attached hereto as to such matters concerning the Borrower Exhibit I-1 (for US opinions) and the Loan Documents as the Administrative Agent and its counsel may reasonably requestExhibit I-2 (for foreign opinions), respectively;
(viivi) a certificate of signed by a Responsible Officer of the Borrower either Company certifying that (A) attaching copies of Sections 4.02(a) and (b) are true and correct; and (B) all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the Borrower such Loan Party of the Loan Documents to which it is a partyparty have been obtained, and such consents, licenses and approvals shall be are in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(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;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(xvii) evidence that the Existing Credit Agreement, and all insurance required to be maintained pursuant to Section 6.04 commitments thereunder, has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after or concurrently with the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agentis being terminated; and
(xiiviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C IssuerIssuers, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) The Loan Parties shall have provided the documentation and other information to the Administrative Agent and the Lenders that are required under applicable “know-your-customer” rules and regulations, including the Act, and requested by the Administrative Agent or any Lender, at least five Business Days prior to the Closing Date.
(d) Unless waived by the Administrative Agent, the Borrower Company shall have paid all Attorney Costs reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved 67484784_8 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: Revolving Credit Agreement (Chicago Bridge & Iron Co N V)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this AgreementAgreement executed by the Borrower and each Lender, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates certificate of resolutions or other action, incumbency certificates certificate and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party;
(viv) 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 Nevada and Texaseach 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 and Xxxxx, LLPVxxxxx & Exxxxx L.L.P., counsel to the Borrower, substantially in the form of Exhibit F, in form and substance satisfactory to Administrative Agent, addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by 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 Initial Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ixviii) UCC searches, a duly completed Compliance Certificate as of a period ending reasonably satisfactory the last day of the Fiscal Quarter of the Borrower most recently ended prior to the Administrative AgentClosing Date for which financial statements are available to the Borrower, listing all effective financing statements which name signed by a Responsible Officer of the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentBorrower;
(xix) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xix) financial projections for a period evidence satisfactory to it that (A) all Loans (as defined in the Existing Credit Agreement) of four Fiscal Years after the Lenders (as defined in the Existing Credit Agreement) shall have been or shall concurrently be repaid in full, together with any accrued interest thereon and any accrued fees payable to such Lenders under the Existing Credit Agreement to the Closing Date prepared by management Date, (B) the commitments under the Existing Credit Agreement of such Lenders shall have been or shall concurrently be terminated, and (C) all Guarantees of any of the Borrower, ’s Subsidiaries in form satisfactory to connection with the Administrative AgentExisting Credit Agreement are being concurrently released;
(xi) the Initial Financial Statements;
(xii) evidence that a notice has been delivered under the Borrower’s Indentures governing its notes terminating the guarantees of such notes by the Subsidiaries; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, LC Issuer or the Required Majority Lenders reasonably may require.
(b) The fee set forth in the invitation letter Borrower shall have a Rating from at least one Rating Agency of the Borrower to each Lender and any other BBB- or better.
(c) Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(cd) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 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 L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning 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 Guaranties, and the Security Documents with respect to the Initial Borrowing Base Properties, sufficient in number for distribution to the Administrative Agent, each Lender Lender, and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing standing, and qualified to engage in business in Nevada and Texaseach 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 Xxxxxx and Xxxxx, LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses licenses, and approvals required in connection with the execution, delivery delivery, and performance by the Borrower such Loan Party and the validity against the Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses licenses, and approvals shall be in full force and effect, or (B) stating that no such consents, licenses licenses, or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a5.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) (A) a duly completed Compliance Certificate as of March 31, 2004, signed by a Responsible Officer of Borrower, (B) a duly completed Borrowing Base Report as of March 31, 2004, signed by a Responsible Officer of Borrower, and (C) the Pro Forma Financial Statements;
(ix) UCC searches, as the insurance policies or other evidence of a period ending reasonably satisfactory insurance satisfying the requirements of Section 7.15 to the extent required by Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies evidence satisfactory to Administrative Agent that all premiums therefor have been paid for a period of not less than one (1) year from the date of this Agreement and that the policies are in full force and effect;
(x) an “as-is” market value appraisal of each Borrowing Base Property made within thirty (30) days prior to the date of this Agreement, which appraises each such financing statements requested Borrowing Base Property on a “completed value” basis. The appraiser and appraisal must be satisfactory to Administrative Agent (including satisfaction of applicable regulatory requirements) and the appraiser must be engaged directly by the Administrative Agent;
(xxi) (A) two (2) prints of an original survey of each Borrowing Base Property and Improvements thereon dated not more than sixty (60) days prior to the date of this Agreement (or dated such earlier date, if any, as is satisfactory to Administrative Agent and Title Insurer, but in any event not more than one hundred eighty (180) days prior to the date of this Agreement) and otherwise complying with Exhibit “F” to the extent required by Administrative Agent and Title Insurer, and (B) a flood insurance policy in an amount required by Administrative Agent, but in no event less than the amount sufficient to meet the requirements of applicable law and the Flood Disaster Protection Act of 1973, as amended, or evidence reasonably satisfactory to Administrative Agent that none of the Borrowing Base Properties are located in a flood hazard area;
(xii) two (2) true and correct copies of all existing Plans (including the site plan) satisfactory to Administrative Agent, together with evidence satisfactory to Administrative Agent that all applicable Governmental Authorities have approved same;
(xiii) true and correct copies of all Leases and subleases, and guarantees thereof;
(xiv) evidence satisfactory to Administrative Agent that no portion of any Borrowing Base Property is “wetlands” under any applicable Law and that the Borrowing Base Properties do not contain and is not within or near any area designated as a hazardous waste site by any Governmental Authority, that no Borrowing Base Property nor any adjoining property contains or has ever contained any Hazardous Material under any Law pertaining to health or the environment, and that no Borrowing Base Property nor any use or activity thereon violates or is or could be subject to any response, remediation, clean-up or other obligation under any Law pertaining to health or the environment including without limitation, a written report of an environmental assessment of any Borrowing Base Property, made within one hundred eight (180) days prior to the date of this Agreement, by an engineering firm, and of a scope and in form and content satisfactory to Administrative Agent, complying with Administrative Agent’s established guidelines, showing that there is no evidence of any Hazardous Material which has been generated, treated, stored, released or disposed of on any Borrowing Base Property, and such additional evidence as may be required by Administrative Agent. All reports, drafts of reports, and recommendations, whether written or oral, from such engineering firm shall be made available and communicated to Administrative Agent;
(A) evidence that each Borrowing Base Property has full adequate direct and free access to one or more public streets; (B) evidence that all insurance required applicable zoning ordinances, restrictive covenants, and Laws affecting each Borrowing Base Property permit the use for which such Borrowing Base Property is intended and have been or will be complied with; (C) evidence that each Borrowing Base Property and Improvements comply with all Laws regarding subdivision and platting and constitute separate tax parcels; and (D) evidence of compliance by Borrower and each Borrowing Base Property, and any proposed construction, use and occupancy of the Improvements, with such other applicable Laws as Administrative Agent may request, including all Laws regarding access and facilities for handicapped or disabled persons including, without limitation and to be maintained pursuant to Section 6.04 has been obtained the extent applicable, The Federal Architectural Barriers Act (42 U.S.C. § 4151 et seq.), The Fair Housing Amendments Act of 1988 (42 U.S.C. § 3601 et seq.), The Americans With Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), The Rehabilitation Act of 1973 (29 U.S.C. § 794), and is in effectany applicable state requirements;
(xixvi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management evidence: (A) of the Borroweridentity of all taxing authorities and utility districts (or similar authorities) having jurisdiction over the Borrowing Base Properties or any portion thereof; (B) that all taxes, standby fees, and any other similar charges have been paid, including copies of receipts or statements marked “paid” by the appropriate authority; and (C) that each Borrowing Base Property is a separate tax lot or lots with separate assessment or assessments of such Borrowing Base Property and Improvements, independent of any other Borrowing Base Property or improvements and that each Borrowing Base Property is a separate legally subdivided parcel;
(xvii) executed, acknowledged, and/or sworn to as required counterparts of the Mortgages, which shall have been recorded in the official records of the city or county in which each Borrowing Base Property is located, and UCC-1 financing statements which shall have been filed in all filing offices that Administrative Agent may require or arrangements satisfactory to Administrative Agent for such recordations and filings have been made;
(xviii) ALTA Title Insurance policies (or title insurance policies promulgated by the Laws of the state in which each Borrowing Base Property is located if an ALTA insurance policy is not available), issued by the Title Insurer in the amount of the Aggregate Commitments plus any other amount secured by the Mortgages, on a coinsurance and/or reinsurance basis if and as reasonably required by Administrative Agent, insuring without exclusion or exception for creditors’ rights that each Mortgage constitutes a valid lien covering the applicable Borrowing Base Property and all Improvements thereon, having the priority required by Administrative Agent and subject only to those exceptions and encumbrances (regardless of rank or priority) Administrative Agent approves, in a form acceptable to Administrative Agent, and as satisfactory to Administrative Agent with all “standard” exceptions which can be deleted, including the exception for matters which a current survey would show, deleted to the fullest extent authorized under applicable title insurance rules, and Borrower shall satisfy all requirements therefor permitted; containing no exception for standby fees or real estate taxes or assessments other than those for the year in which the closing occurs to the extent the same are not then due and payable and endorsed “not yet due and payable” and no exception for subsequent assessments for prior years; providing full coverage against mechanics’ and materialmens’ liens to the extent authorized under applicable title insurance rules, and Borrower shall satisfy all requirements therefor; insuring that no restrictive covenants shown in the Title Insurance have been violated, and that no violation of the restrictions will result in a reversion or forfeiture of title; insuring all appurtenant easements; insuring that fee simple (or leased for approved Ground Leases) indefeasible or marketable (as coverage is available) fee simple (or leasehold for approved Ground Leases) title to the Borrowing Base Properties and Improvements is vested in a Loan Party; containing such affirmative coverage and endorsements as Administrative Agent may reasonably require and are available under applicable title insurance rules, and Borrower shall satisfy all requirements therefor; insuring any easements, leasehold estates or other matters appurtenant to or benefiting the Borrowing Base Properties and/or the Improvements as part of the insured estate; insuring the right of access to each Borrowing Base Property to the extent authorized under applicable title insurance rules, and Borrower shall satisfy all requirements therefor; and containing provisions acceptable to Administrative Agent regarding advances and/or readvances of Loan funds after closing. Borrower and Borrower’s counsel shall not have any interest, direct or indirect, in the Title Insurer (or its agent) or any portion of the premium paid for the Title Insurance;
(xix) (A) evidence that prior to and as of the time the Mortgages were filed for record (1) no activity or circumstance was visible on or near any Borrowing Base Property which would constitute inception of a mechanic’s or materialman’s lien against such Borrowing Base Property, (2) no contract, or memorandum thereof, for construction, design, surveying, or any other service relating to any Borrowing Base Property has been filed for record in the county where such Borrowing Base Property is located, and (3) no mechanic’s or materialman’s lien claim or notice, lis pendens, judgment, or other claim or encumbrance against any Borrowing Base Property has been filed for record in the county where such Borrowing Base Property is located or in any other public record which by Law provides notice of claims or encumbrances regarding such Borrowing Base Property; (B) a certificate or certificates of a reporting service acceptable to Administrative Agent, reflecting the results of searches made not earlier than thirty (30) days prior to the date of this Agreement: (1) of the central and local Uniform Commercial Code records, showing no filings against any of the collateral for the Obligations or against Borrower otherwise except as consented to by Administrative Agent; and (2) if required by Administrative Agent, of the appropriate judgment and tax lien records, showing no outstanding judgment or tax lien against any Loan Party;
(xx) a true and correct copy of (A) each Franchise Agreement, (B) each Ground Lease, and (C) each Operating Lease; and
(xiixxi) such other assurances, certificates, documents, consents consents, or opinions as the Administrative Agent, the Agent and L/C Issuer, Issuer or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of the counsel to Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 Parent shall have occurred completed an initial public offering of its common Equity Interests and received gross cash proceeds of at least $200,000,000 resulting in such common Equity Interests being traded on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effectNew York Stock Exchange. Without limiting the generality of the provisions of Section 9.0410.04, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved 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 (Capital Lodging)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder hereunder, and of the Existing L/C Issuer to continue the Existing Letters of Credit hereunder, is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party (if applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal Pledge Agreements with respect to the Swing Line Sublimitall Equity Interest Collateral;
(iv) the Mortgage Assignments with respect to the SunChamp Collateral, along with all Related Collateral Deliverables;
(v) the JV Debt Assignments with respect to the JV Debt Collateral, along with all Related Collateral Deliverables;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(vvii) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that each of the Borrower and Guarantors is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 Xxxxxx Jaffe, Raitt, Heuer and Xxxxx, LLPP.C., Michigan counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F-1 and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(viiix) a favorable opinion of Xxxx Xxxxxxx, P.C., New York counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F-2 and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(x) an opinion of Shearman & Sterling LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent;
(xi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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;
(viiixii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a5.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Leverage Ratio as of March 31, 2013;
(ixxiii) UCC searches, a duly completed Compliance Certificate as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name last day of the fiscal quarter of the Borrower or any ended on March 31, 2013, signed by a Responsible Officer of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentBorrower;
(xxiv) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xixv) financial projections for a period of four Fiscal Years after evidence that the Existing Credit Agreement has been or concurrently with the Closing Date prepared is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(xvi) a breakage indemnity letter agreement executed by management of the Borrower, Borrower in form and substance satisfactory to the Administrative AgentAgent and the Borrower and dated and delivered to the Administrative Agent at least three (3) Business Days prior to the Closing Date;
(xvii) completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party; and
(xiixviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C IssuerIssuers, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 L/C Issuer, Swing Line Lender, and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning 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 Guaranties, and the applicable Pledge Agreements, sufficient in number for distribution to the Administrative Agent, each Lender Lender, and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxxx and Xxxxx, LLP, legal counsel to the BorrowerLoan Parties and local counsel to the Loan Parties in the jurisdictions in which the Initial Borrowing Base Properties are located, in each case, addressed to the Administrative Agent and each Lender, as to such matters concerning due formation and applicable good standing of the Borrower Loan Parties and the due execution and enforceability of the Loan Documents as the Administrative Agent and its counsel may reasonably requestDocuments;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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(a5.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Pro Forma Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a duly completed Borrowing Base Report and Compliance Certificate as of the Closing Date, signed by a Responsible Officer of Borrower;
(ix) UCC searches, as the Property Information with respect to each of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentInitial Borrowing Base Properties;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;; and
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xii) such other customary assurances, certificates, documents, consents or opinions as the Administrative Agent, the Swing Line Lender, L/C Issuer, Issuer or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of the counsel to Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 . Notwithstanding anything to the contrary set forth herein, or in any other Loan Document, the completion of the conditions to effectiveness of this Agreement occurred on or before June 30July 26, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to 2012. Each Loan Party, each Lender (as such term is defined in and Administrative Agent hereby acknowledge and agree that, notwithstanding the Existing Credit Agreement) under immediately preceding sentence, this Agreement and the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going Loan Documents shall be deemed to be transferred and deemed issued under this Agreementeffective as of July 20, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect2012. Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (American Realty Capital Trust III, Inc.)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Loan Notes Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to 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 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;
(viv) 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 Material Subsidiary is validly existing, existing and in good standing and qualified to engage in business in Nevada and Texasits state of incorporation and/or domicile;
(viv) a favorable opinion of Xxxxxx and Xxxxx, LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(vi) a favorable opinion of Xxxxx X. Sudbury, Esq., in-counsel to the Borrower, addressed to the Administrative Agent and its counsel each Lender, as to matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by 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 Section 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has the Existing Credit Agreements have been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after or concurrently with the Closing Date prepared by management of will be terminated and that obligations under the BorrowerExisting Credit Agreements have been or, in form satisfactory to concurrently with the Administrative AgentClosing Date will be satisfied; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Issuers or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30August 8, 20112003.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 effectiveness of each Lender to make its initial this Agreement as an amendment and restatement of the Original Credit Extension hereunder Agreement is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party (if and as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the each Borrower;
(ii) a Note with respect to the Revolving Loan Notes Credit Facility executed by the Borrower Borrowers in favor of each Revolving Credit Lender requesting a Revolving Note and a Note with respect to the Term Loan Note, Facility executed by the Borrowers in favor of each in Term Loan Lender requesting a principal amount equal to such Lender’s CommitmentNote ;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that each of the Borrower Loan Parties is validly existing, existing and in good standing and qualified to engage in business in Nevada and Texasits jurisdiction of organization;
(viv) a favorable opinion opinions of Xxxxxx and Xxxxx, LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent Agent, each L/C Issuer and each Lender, as to such matters concerning the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the Borrower such Loan Party of the Loan Documents to which it is a party, and confirming that such consents, licenses and approvals shall be are in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower Company certifying that (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) evidence of the existence of, and summarizing, the property and casualty insurance program carried by the Company with respect to itself and its Subsidiaries, including evidence that the Administrative Agent and the Lenders are covered as additional insureds with respect to general liability coverage; and
(ix) UCC searchesa certificate of a Responsible Officer of the Company as to the satisfaction of the Guarantor Requirement contained in Section 6.10, together with a calculation as of a period ending reasonably August 29, 2015 as to such requirement and the satisfaction thereof in form and detail satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender Any fees and any other fees expenses required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 (Clarcor 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning 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 Parent Guaranty, the Subsidiary Guaranty, and the Pledge Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the 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 Nevada and Texaseach 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, which such jurisdictions are set forth on Schedule 4.01(a)(iv);
(viv) a favorable opinion of Xxxxxx and XxxxxXxxxxxx Law Firm, LLPP.C., L.L.O., counsel to the BorrowerLoan Parties, and applicable local counsel opinions, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel or the Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 Statements, including without limitation any action, suit, investigation, or proceeding pending or, to the knowledge of the Borrower, threatened, in any court or before any arbitrator or Governmental Authority, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ixviii) UCC searches, a duly completed Compliance Certificate as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name last day of the fiscal quarter of the Borrower or any ended on September 30, 2006, signed by a Responsible Officer of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentBorrower;
(xix) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xix) financial projections for a period evidence that (A) all of four Fiscal Years after the indebtedness of Star (the “Star Debt”) guaranteed by the Borrower and the Guarantors in connection with the acquisition of Star by the Parent has been or concurrently with the Closing Date prepared by management is being repaid in full, (B) any related documentation has been or concurrently with the Closing Date is being terminated, and (C) all Liens securing such obligations have been or concurrently with the Closing Date are being released;
(xi) delivery of documents and/or evidence of other actions as may be reasonably necessary under applicable law to perfect the Liens of the BorrowerAdministrative Agent under the Pledge Agreement as a first priority Lien in and to such Pledged Interests as the Administrative Agent may reasonably require, including the delivery by the Borrower of all certificates evidencing Pledged Interests, accompanied in form satisfactory each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(xii) an initial Borrowing Base Certificate for the most recently ended fiscal quarter, provided that, for purposes of determining the Borrowing Base as of the Closing Date, so long as the release of the Liens associated with the Star Debt to be reflected in the public record or otherwise is in the process of being released or filed to the satisfaction of the Administrative Agent, the equipment associated with such Liens which would otherwise not be permitted to be included in such Borrowing Base shall be permitted to be included in the calculation of such Borrowing Base;
(xiii) Revolving Loan Notice in connection with any conversions or Borrowings as of the Closing Date;
(xiv) copies of all documents governing or evidencing any Permitted Receivables Securitization, all as in effect as of the Closing Date, certified by the Secretary or Assistant Secretary of the Borrower to be true, correct and complete copies thereof; and
(xiixv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30January 31, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect2007. 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 occurrence of the Closing Date, the initial effectiveness of this Agreement and obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, (or such Loan Party’s sole or managing member, manager, development manager, general partner, or other comparable constituent entity), each dated the 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:: 83862495
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such Organization Documents and other certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer of the Borrower each Loan Party (or such Loan Party’s sole or managing member, manager, development manager, general partner, or other comparable constituent entity) 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 such Loan Party is a party;
(viv) such other documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texasthe jurisdiction of its incorporation or organization;
(viv) a the favorable opinion opinions of Xxxxxx and Xxxxx, King & Spalding LLP, counsel to the BorrowerLoan Parties, and local counsel to the Loan Parties, acceptable to the Administrative Agent addressed to the Administrative Agent and each Lender, as in form and substance reasonably satisfactory to such matters concerning the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consentsAgent, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower covering enforceability of the Loan Documents and other customary matters to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so requiredagreed upon;
(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, 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 calculation of the Consolidated Leverage Ratio as of September 30, 2016;
(ixvii) UCC searches, a duly completed Compliance Certificate as of September 30, 2016, signed by a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management Responsible Officer of the Borrower, in form satisfactory to the Administrative Agent; and
(xiiviii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Agent or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid to the Administrative Agent, the Arrangers or any other Lender (whether pursuant to the Fee Letters or otherwise) on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs of the Administrative Agent as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The representations and warranties of the Loan Parties contained in Article V or any other Loan Document, or which are contained in any other document furnished at any time under this Agreement, shall be true and correct in all material respects (except, if a qualifier relating to materiality or Material Adverse Effect or a similar concept already applies, such representation or warranty shall be required to be true and correct in all respects) on and as of the Closing Date shall have occurred on or before June 30, 2011.Date. 83862495
(e) No Default shall exist and be continuing as of the Closing Date.
(f) There shall not have occurred a material adverse change since December 31, 2015 in the business, assets, liabilities (actual or contingent), operations or financial condition of the Borrower and its Consolidated Entities taken as a whole.
(g) There shall not exist any action, suit, investigation, or proceeding, pending or threatened, in any court or before any arbitrator or governmental authority that purports to affect the Borrower, its Consolidated Entities or any transaction contemplated hereby, or that would reasonably be expected to have a Material Adverse Effect.
(h) The Borrower and its Consolidated Entities shall be in compliance with all existing financial obligations and Contractual Obligations, the failure to comply with which would reasonably be expected to have a Material Adverse Effect.
(i) The Existing Credit Agreement shall have delivered written confirmation that all Obligations (as such term defined in been amended on terms and conditions acceptable to the Existing Credit Agreement) owing to each Lender Required Lenders (as such term is defined in the Existing Credit Agreement) under to reflect certain changes essential for the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of indebtedness evidenced by the Existing Credit Agreement have been terminated in full prior to be pari passu with the closing indebtedness evidenced by this Agreement and funding of this Agreement; provided, however, all provisions contained in the other Loan Documents (as such term is defined in amendment being the Existing Credit Agreement“Revolver Amendment”).
(j) which expressly state that they shall survive termination The Loan Documents must not violate any provision of the Commitments and repayment applicable laws, constitutive documents, orders of the Obligations shall continue in full force and effect. Without limiting the generality of any Governmental Authority, the provisions of Section 9.04, for purposes any material agreement to which any Loan Party may be subject or result in the creation or imposition of determining compliance with any Lien on the conditions specified in this Section 4.01, each Lender that has signed this Agreement assets or property of any Loan Party. The occurrence of the Closing Date shall be deemed to have consented to, approved confirmed by electronic mail 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 written notice from the Administrative Agent shall have received notice from such Lender prior to the proposed Borrower on the Closing Date specifying its objection theretoDate, and shall be conclusive evidence that the Administrative Agent and the Lenders have closed the Agreement as of such date.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory (other than the items listed on Schedule 4.01, which items are hereby permitted to be delivered after the Administrative Agent:Closing Date but not later than the respective date for delivery of each such item specified on Schedule 4.01):
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Agreement and the BorrowerGuaranty;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers a secretary or assistant secretary or similar officer of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texasits jurisdiction of incorporation or formation;
(viv) (A) a favorable opinion of Xxxxxx Fulbright and XxxxxJaworski, LLPL.L.P., counsel to the BorrowerLoan Parties, addressed to the Administrative Adxxxxxxxxtive Agent and each Lender, as to such the matters concerning the Borrower set forth in Exhibit F, and the Loan Documents (B) a favorable opinion of Borrower's special Oklahoma counsel as to Oklahoma law matters pertaining to Suits Drilling Company, and a favorable opinion of Borrower's special Pennsylvania counsel as to Pennsylvania law matters pertaining to International Petroleum Service Company, in each case in form and substance reasonably satisfactory to the Administrative Agent and its counsel may reasonably requestAgent;
(viivi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by 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 representations and warranties of the Borrower contained in Sections 4.02(aArticle V are true and correct as of the Closing Date, (B) no Default has occurred and (b) have been satisfiedis continuing as of such date, and (BC) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to havehave or result in, either individually or in the aggregate, a Material Adverse Effectmaterial adverse effect upon, or a material adverse change in, in the business, assets, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole;
(viii) a 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 the Borrower;
(ix) UCC searches, as of a period ending reasonably evidence satisfactory to the Administrative Agent, listing all effective financing statements which name Agent of the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management termination of the Borrower, in form satisfactory to 's existing revolving credit agreement and repayment of all amounts due thereunder on or before the Administrative AgentClosing Date; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent 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 facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to 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 require evidencing the identity, authority and capacity 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;
(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 Nevada and Texas;
(vi) a favorable opinion of Xxxxxx and Xxxxx, LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by 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, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters Letter shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June November 30, 20112014.
(e) The Borrower shall have delivered written confirmation that all All Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, shall have been irrevocably paid in full in cash (or shall be repaid substantially contemporaneously with the initial funding of the Loans on the Closing Date) and that each all Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement shall have been terminated in full prior to the closing and funding of this Agreementfull; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the such Commitments and repayment of the such Obligations shall continue in full force and 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
Samples: Credit Agreement (Gruma Sab De Cv)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving a Committed Loan Notes Note executed by the Borrower in favor of each Lender requesting a Revolving Loan Note, each in a principal amount equal to such Lender’s Commitment;
(iii) and a Swing Line Note executed by the Borrower in favor of the Swing Line Lender, in a principal amount equal to the Swing Line Sublimit;
(iviii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the 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 Nevada and Texasits jurisdiction of organization;
(viv) a favorable opinion of Xxxxxx and XxxxxWittner, LLPPoger, Spewak, Maylack & Xxxxxxx, P.C., counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning the Borrower Loan Parties and --------- the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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;, and (C) as to the matters described in Section 4.01(e); ---------------
(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 is no event ------- --- event, circumstance, action, suit, investigation or circumstance since proceeding pending or, to the date best of the Audited Financial Statements Borrower's knowledge, threatened in any court or before any arbitrator or Governmental Authority since October 31, 2004 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(xviii) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xiix) financial projections for a period of four Fiscal Years after the Closing Date prepared by management Audited Financial Statements of the BorrowerBorrower and its Subsidiaries, all audited and opined on by PricewaterhouseCoopers LLP and prepared in form satisfactory to the Administrative Agentconformity with GAAP; and
(xiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30February 1, 20112005.
(e) The In the good faith judgment of the Administrative Agent and the Lenders:
(i) there shall not exist any pending or threatened action, suit, investigation or other arbitral, administrative or judicial proceeding in any court or before any arbitrator or Governmental Authority, which, if adversely determined, could reasonably be expected to (A) result in a Material Adverse Effect or (B) affect any transaction contemplated hereby or the ability of the Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing or any of its Subsidiaries or any other Guarantor to each Lender (as such term is defined in the Existing Credit Agreement) perform its obligations under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments Loan Documents;
(as such term is defined in the Existing Credit Agreementii) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 information satisfactory to it and its counsel regarding litigation, tax, accounting, labor, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, contingent liabilities and management of the proposed Closing Date specifying Borrower and its objection theretoSubsidiaries; and
(iii) the Borrower shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any applicable law, rule, regulation, order or decree of any Governmental Authority or arbitral authority or (B) any agreement, document or instrument to which the Borrower or any Subsidiary is a party or by which any of them or their properties is bound.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of L/C Issuer, Swing Line Lender, and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning 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 Guaranties, and the applicable Pledge Agreements, sufficient in number for distribution to the Administrative Agent, each Lender Lender, and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not have a Material Adverse Effect;
(viv) a favorable opinion of Xxxxxx and Xxxxx, LLP, legal counsel to the BorrowerLoan Parties and local counsel to the Loan Parties in the jurisdictions in which the Initial Borrowing Base Properties are located, in each case, addressed to the Administrative Agent and each Lender, as to such matters concerning due formation and applicable good standing of the Borrower Loan Parties and the due execution and enforceability of the Loan Documents as the Administrative Agent and its counsel may reasonably requestDocuments;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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(a5.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Pro Forma Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a duly completed Borrowing Base Report and Compliance Certificate as of the Closing Date, signed by a Responsible Officer of Borrower;
(ix) UCC searches, as the Property Information with respect to each of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative AgentInitial Borrowing Base Properties;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;; and
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xii) such other customary assurances, certificates, documents, consents or opinions as the Administrative Agent, the Swing Line Lender, L/C Issuer, Issuer or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of the counsel to Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.0410.03, for purposes of determining compliance with the conditions specified in this Section 4.015.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (American Realty Capital Trust, Inc.)
Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that each of the Borrower Loan Parties is validly existing, existing and in good standing and qualified to engage in business in Nevada and Texasits jurisdiction of organization;
(viv) a favorable opinion opinions of Xxxxxx and Xxxxx, LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent Agent, each L/C Issuer and each Lender, as to such matters concerning the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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, 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;
(ixviii) UCC searchesevidence of the existence of, as of a period ending reasonably satisfactory and summarizing, the property and casualty insurance program carried by the Borrower with respect to itself and its Subsidiaries, including evidence that the Administrative Agent, listing all effective financing statements which name Agent and the Borrower or any of its Subsidiaries Lenders are covered as debtor, together additional insureds with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required respect to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agentgeneral liability coverage; and
(xiiix) such other assurances, certificates, documents, consents evidence that the Existing Credit Agreement has been or opinions as concurrently with the Administrative Agent, Closing Date is being terminated and any Liens securing obligations under the L/C Issuer, Existing Credit Agreement have been or concurrently with the Required Lenders reasonably may requireClosing Date are being released.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 (Clarcor 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Loan Notes Credit Note executed by the Borrower in favor of each Revolving Credit Lender requesting a Revolving Loan Credit Note, each in a principal amount equal to such Lender’s Commitment;
(iii) a Swing Line Term Note executed by the Borrower in favor of the Swing Line Lender, in each Term Lender requesting a principal amount equal to the Swing Line SublimitTerm Note;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and the Trust 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 such Loan Party is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Borrower and the Trust is duly organized or formed, and that each of the Borrower and the Trust is validly existing, in good standing and qualified to engage in business in Nevada and Texasits jurisdiction of organization;
(vi) a favorable opinion of Xxxxxx and Xxxxx, Xxxxxxx Xxxxx LLP, counsel to the BorrowerLoan Parties, and Xxxxxxx LLP, counsel to the Trust, addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower and the Trust, and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request, in a form satisfactory to the Administrative Agent, provided that the Lenders acknowledge that this opinion will not cover the Subsidiary Guarantors and the Subsidiary Guaranty;
(vii) a certificate of a Responsible Officer of the Borrower and the Trust either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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, 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 EffectEffect and (C) 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 Closing Date;
(ix) UCC searches, a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on December 31, 2014, signed by a period ending Responsible Officer of the Borrower;
(x) a Committed Loan Notice for the Borrowings to be funded at Closing; and
(xi) Closing instructions providing in a manner reasonably satisfactory to the Administrative AgentAgent that, listing all effective financing statements which name upon giving effect to the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after transactions contemplated hereby on the Closing Date prepared by management and the disbursement of the BorrowerTerm Loans on the Closing Date, the “Term Loans” as defined in form satisfactory to the Administrative AgentExisting Credit Agreement shall be repaid in full; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid to the Administrative Agent or any Lender in connection with this Agreement or the Fee Letter on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the date that is three Business Days prior to the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit and Term Loan Agreement (DCT Industrial Trust Inc.)
Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentconditions:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning 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 Lenders:
(i) executed counterparts of this Agreement, the Confirmation, any amendments to the Collateral Documents under the Existing Credit Agreement required by the Administrative Agent, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line SublimitLender’s Revolving Commitment;
(iii) [Intentionally Omitted];
(iv) a Term B Loan Note executed by the Borrower in favor of the Lender, in a principal amount equal to the Lender’s Term B Commitment (to be held by the Administrative Agent, pending the funding of the Term B Loan);
(v) such certificates of resolutions or other similar action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party which is not a natural Person as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(vvi) such documents and certifications certificates as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each such Loan Party is validly existing, existing and in good standing and qualified to engage in business in Nevada and Texasstanding;
(vivii) a favorable opinion opinions of Xxxxxx and Xxxxx, LLP, counsel to the Borrower, Loan Parties addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by 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, and (B) that to the knowledge of the Responsible Officer there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, Agent or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid on or before the Closing Date pursuant to the Fee Letter shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The obligation of each Lender to make its Term B Loan is also subject to the Administrative Agent’s receipt of the following, each in form and substance satisfactory to the Administrative Agent:
(i) an ALTA Loan Title Insurance Policy, issued by an issuer acceptable to the Administrative Agent, insuring the Administrative Agent’s Lien on the real property being financed with the proceeds of the and containing such endorsements as the Administrative Agent may reasonably require (it being understood that the amounts of coverage, exceptions to coverage and status of title set forth in such policy shall be acceptable to the Administrative Agent);
(ii) copies of all documents of record concerning such real property as shown on the commitment for the ALTA Loan Title Insurance Policy referred to above;
(iii) original or certified copies of all insurance policies required to be maintained with respect to such real property by this Agreement, the applicable Deed of Trust or any other Loan Document;
(iv) a survey certified to the Administrative Agent meeting such standards as the Administrative Agent may reasonably establish and otherwise reasonably satisfactory to the Administrative Agent;
(v) a flood insurance policy concerning such real property, if required by the Flood Disaster Protection Act of 1973;
(vi) an appraisal of such real property complying with all requirements of the applicable Governmental Authorities; and
(vii) environmental reports concerning such property.
(e) The Closing Date (other than as to the Term B Loan contemplated by Section 4.01(d)) shall have occurred on or before June 30December 31, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal Pledge Agreements with respect to the Swing Line Sublimitall Equity Interest Collateral;
(iv) Mortgage Assignments with respect to the SunChamp Collateral;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party;
(vvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that each of the Borrower and Guarantors is validly existing, in good standing and qualified to engage in business in Nevada and Texaseach 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 Jaffe, Raitt, Heuer and XxxxxWxxxx, LLPP.C., counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel Required Lenders may reasonably request;
(viiviii) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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(a5.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
; and (ixC) UCC searches, a calculation of the Leverage Ratio as of a period ending reasonably satisfactory to the Administrative AgentJune 30, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent2011;
(x) a 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 the Borrower;
(xi) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xixii) financial projections for a period of four Fiscal Years after evidence that the Existing Credit Agreement has been or concurrently with the Closing Date prepared by management of the Borrower, in form satisfactory to the Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender is being terminated and any other fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) Liens securing obligations under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance or concurrently with the conditions specified in this Section 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.are being released; and
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of each LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory acceptable to the Administrative Agent:
(i) counterparts of (1) this Agreement executed by the Borrower, the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and (2) the BorrowerGuaranty Agreement executed by the parties thereto;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates certificate of resolutions or other action, incumbency certificates certificate and/or other certificates of Responsible Officers of the Borrower (or its General Partner) and each Subsidiary party to a Loan Document as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Person is a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower and each Subsidiary party to a Loan Document is duly organized or formed, and that the Borrower each such Person is validly existing, in good standing and qualified to engage in business in Nevada and Texasits jurisdiction of formation;
(viv) a favorable opinion of Xxxxxx and Xxxxx, & Xxxxxxx LLP, counsel to the BorrowerBorrower and each Subsidiary party to a Loan Document, in form and substance satisfactory to Administrative Agent, addressed to the Administrative Agent and each Lender, as to such matters concerning the Borrower and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower (or its General Partner) and each Subsidiary party to a Loan Document either (A) attaching copies of certifying that all consents, licenses and approvals (including all equityholder and board of director (or comparable entity management body) authorizations) required in connection with the execution, delivery and performance by the Borrower such Person and the validity against the Borrower such Person of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be are in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viiivii) a certificate signed by a Responsible Officer of the Borrower or its General Partner certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event does not exist any pending or circumstance since the date threatened litigation, proceeding under any Debtor Relief Law, or other proceeding in respect of the Audited Financial Statements initial Credit Extension or that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ixviii) UCC searches, as of a period ending reasonably evidence satisfactory to it that (A) all Loans (as defined in each Existing Credit Agreement) of the Administrative Agent, listing all effective financing statements which name the Borrower Lenders (as defined in each Existing Credit Agreement) shall have been or any of its Subsidiaries as debtorshall concurrently be repaid in full, together with copies any accrued interest thereon and any accrued fees payable to such Lenders under each Existing Credit Agreement to the Closing Date, and (B) the commitments under each Existing Credit Agreement of such financing statements requested by Lenders shall have been or shall concurrently be terminated;
(ix) the Administrative AgentInitial Financial Statements;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 has been obtained fully executed counterparts of the 364-Day Credit Agreement and is in effect;the 364- Day Credit Agreement Loan Documents; and
(xi) financial projections for a period of four Fiscal Years after the Closing Date prepared by management fully executed counterparts of the Borrower, in form satisfactory to the Administrative Agent; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, or the Required Lenders reasonably may requireETP Consolidation Agreements.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid by the Borrower and its Subsidiaries on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least two (2) Business Days (or such later date reasonably acceptable to the Borrower) prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 At least three (3) Business Days prior to the Closing Date, the Borrower and each Subsidiary party to a Loan Document shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent or any other Lender at least five (5) Business Days prior to the Closing Date shall have occurred on or before June 30in order to comply with requirements of any Anti-Money Laundering Laws, 2011including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and regulations.
(e) The Borrower shall have delivered written confirmation Since December 31, 2016, no event or circumstance has occurred that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effecthas had 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 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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to 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 require evidencing the identity, authority and capacity 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;
(viv) 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 Nevada and Texaseach 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 and Xxxxx, LLPSpixxxxx Xxw Group, counsel to the 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 as the Administrative Agent and its counsel Required Lenders may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by 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, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(xviii) evidence that all insurance required to be maintained pursuant to Section 6.04 the Existing Credit Agreement has been obtained and is in effect;
(xi) financial projections for a period of four Fiscal Years after or concurrently with the Closing Date prepared by management of will be been repaid in full in cash and all existing commitments thereunder have been or concurrently with the Borrower, in form satisfactory to the Administrative AgentClosing Date are being terminated; and
(xiiix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(bi) The fee set forth in Upon the invitation letter reasonable request of any Lender made at least ten (10) days prior to the Closing Date, the Borrower shall have provided such Lender, and such Lender shall be reasonably satisfied with, the final documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least five (5) days prior to the Closing Date, and (ii) at least five (5) days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to each Lender and any other that so requests it, a Beneficial Ownership Certification in relation to such Loan Party.
(c) Any fees required to be paid on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(cd) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 June 30, 2011.
(e) The Borrower shall have delivered written confirmation that issued the Senior Notes, repaid in full and terminated the existing senior notes and obtained all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) related lien releases under the Existing Credit Agreement, other than Obligations existing senior notes in accordance with the definitive Senior Notes documentation.
(f) The Administrative Agent shall have received a payoff letter with respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they Agreement shall survive termination of the Commitments be paid and repayment of the Obligations shall continue performed in full force and effectthe commitments thereunder terminated substantially simultaneously with the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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 theretoobjection.
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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 in form and substance satisfactory to the Administrative Agentprecedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles or electronic pdfs (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrowersigning Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes a Note executed by the Borrower in favor of each Lender requesting a Revolving Loan 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, in a principal amount equal to the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the 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 the Borrower such Loan Party is a party or is to be a party;
(viv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower each Loan Party is duly organized or formed, and that the Borrower each Loan Party is validly existing, in good standing and qualified to engage in business in Nevada and Texasits jurisdiction of organization;
(viv) a favorable opinion of Xxxxxx and Xxxxx, Sidley Austin LLP, counsel to the BorrowerLoan Parties, or other applicable local counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit F and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Administrative Agent and its counsel may reasonably request;
(viivi) a certificate of a Responsible Officer of the Borrower each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower such Loan Party and the validity against the 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 as of the Closing Date certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedsatisfied or waived (which such waiver must be in writing), and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could reasonably be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) that neither the Borrower nor any Subsidiary is in default under or with respect to any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and (D) that the Borrower has disclosed to the Administrative Agent and the Lenders all matters known to any Responsible Officer that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect;
(viii) a duly completed Compliance Certificate as of the Closing Date, signed by a Responsible Officer of the Borrower, certifying as to no Default under the terms of this Agreement and evidencing compliance with Section 7.10;
(ix) UCC searches, as of a period ending reasonably satisfactory to the Administrative Agent, listing all effective financing statements which name the Borrower or any of its Subsidiaries as debtor, together with copies of such financing statements requested by the Administrative Agent;
(x) evidence that all insurance required to be maintained pursuant to Section 6.04 the Loan Documents has been obtained and is in effect;
(xix) financial projections for a period of four Fiscal Years after evidence that the Existing Credit Agreement has been or concurrently with the Closing Date prepared is being terminated;
(xi) evidence that the Existing U.S. Cellular Credit Agreement has been or concurrently with the Closing Date is being terminated and concurrent consummation of a related facility among U.S. Cellular, Toronto Dominion (Texas) LLC, as administrative agent and the lenders party thereto;
(xii) delivery of a duly completed and executed Federal Reserve Form U-1, Statement of Purpose for an Extension of Credit Secured by management of the Borrower, in form satisfactory to the Administrative AgentMargin Stock; and
(xiixiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The fee set forth in the invitation letter of the Borrower to each Lender and any other Any fees required to be paid by the Borrower pursuant to the Fee Letters on or before the Closing Date shall have been paid, and the Fee Letters shall be in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs reasonable and invoiced fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs such invoiced fees, charges and disbursements as shall constitute its reasonable estimate of Attorney Costs such fees, charges and disbursements incurred or 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 AgentAgent in accordance with the terms of this Agreement).
(d) The Closing Date shall have occurred on or before June 30, 2011.
(e) The Borrower shall have delivered written confirmation that all Obligations (as such term defined in the Existing Credit Agreement) owing to each Lender (as such term is defined in the Existing Credit Agreement) under the Existing Credit Agreement, other than Obligations in respect of the Existing Letters of Credit, which are going to be transferred and deemed issued under this Agreement, have been irrevocably paid in full in cash and that each Lender’s Commitments (as such term is defined in the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement have been terminated in full prior to the closing and funding of this Agreement; provided, however, all provisions contained in the Loan Documents (as such term is defined in the Existing Credit Agreement) which expressly state that they shall survive termination of the Commitments and repayment of the Obligations shall continue in full force and effect2016. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, 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.. 72
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Samples: Credit Agreement (Telephone & Data Systems Inc /De/)
