Conditions Precedent to Initial Borrowing The initial Borrowing under this Agreement is subject to the satisfaction of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent.
Conditions Precedent to Borrowing The obligation of the Liquidity Provider to make an Advance on the occasion of each Borrowing shall be subject to the conditions precedent that the Effective Date shall have occurred and, prior to the date of such Borrowing, the Borrower shall have delivered a Notice of Borrowing which conforms to the terms and conditions of this Agreement and has been completed as may be required by the relevant form of the Notice of Borrowing for the type of Advances requested.
Conditions Precedent to the Initial Extension of Credit The obligation of each Lender to make the initial extensions of credit provided for hereunder is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the conditions precedent set forth on Schedule 3.1 to this Agreement (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent).
Conditions Precedent to Borrowings 5.1 Conditions Precedent to the Initial Borrowing of TBC 37 5.2 Conditions Precedent to Each Committed Borrowing of TBC 38 5.3 Conditions Precedent to Each Bid Borrowing of TBC 38 5.4 Conditions Precedent to the Initial Borrowing of a Subsidiary Borrower 39 5.5 Conditions Precedent to Each Committed Borrowing of a Subsidiary Borrower 39 5.6 Conditions Precedent to Each Bid Borrowing of a Subsidiary Borrower 40
Conditions Precedent to Initial Loans The Lenders shall not be required to fund the requested Loans or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions (except to the extent that such conditions are permitted by each Lender to be satisfied on a post-closing basis pursuant to a post-closing agreement) has been satisfied:
(a) Each Lender that requests issuance of a Note shall have received a Note executed by the Borrowers and delivered to each such Lender. Each other Loan Document shall have been duly executed and delivered to the Lenders by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.
(b) The Lenders shall have received UCC and Lien searches.
(c) The Lenders shall have received fully-executed account control agreements for each Deposit Account (as defined in the Revolver Agreement) and Securities Account (as defined in the Revolver Agreement) (other than the Deposit Accounts at Bank of America, N.A. and JPMorgan Chase Bank, N.A. for which account control agreements shall be delivered pursuant to Section 9.1.16) subject to the “control” (for purposes of the UCC) of the Revolving Credit Agent and, upon the termination of the Revolver Agreement, the Collateral Agent, each in form and substance reasonably satisfactory to the Collateral Agent.
(d) The Lenders shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Responsible Officer of Borrower Representative certifying that, after giving effect to the Loans and transactions hereunder, (i) each Obligor is Solvent; (ii) no Default or Event of Default exists or would result from this Agreement or other Loan Documents becoming effective in accordance with its or their respective terms; (iii) the representations and warranties set forth in Section 8 are true and correct in all respects; and (iv) such Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(e) The Lenders shall have received a certificate of a duly authorized officer of each Borrower, certifying (i) that attached copies of such Borrower’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown, (ii) that an attached copy of resolutions (to the extent necessary under Applicable Law or applicable Organic Documents) authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility, and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. The Lenders may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(f) The Lenders shall have received copies of the charter documents of each Obligor, certified as appropriate by the Secretary of State or another official of such Obligor’s jurisdiction of organization. The Lenders shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization.
(g) The Lenders shall have received an opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Borrowers, as to such matters as the Collateral Agent may reasonably request.
(h) The Lenders shall have received a copy of the financial statements and the financial projections described in Section 8.1.7 hereof.
(i) [Intentionally omitted.]
(j) Borrowers shall have paid all fees, costs and expenses which are payable pursuant to the terms hereof to Lenders on the Closing Date.
(k) The Collateral Agent shall have received Lien Waivers, each in form and substance reasonably satisfactory to the Collateral Agent, as it may request, in respect of (a) the following locations: (i) 000 Xxxxx Xxxxxxxxxx Xxxx, Xx. Xxxxxx, Utah 84770, and (ii) 13085, 13039 and 00000 Xxxx Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxx, Xxxxxxxxxx, and (b) the imported goods that Xxxxxxxxxx International Service has been engaged by the Borrowers to facilitate the import of.
(1) The Lenders shall have received evidence that (i) the Term A Loans under this Agreement have been designated as “Additional Priority Permitted Debt” under the 2009 Debenture Intercreditor Agreement, and (ii) the Term B Loans under this Agreement have been designated as “Additional Priority Permitted Debt” under the 2009 Debenture Intercreditor Agreement.
Conditions Precedent to Loans The obligation of each Initial Lender to make its Initial Loan hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(iv) a favorable opinion of Vxxxxx and Exxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent, Lead Arranger, each Co-Arranger and each Lender, as to the matters set forth in Exhibit E and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(v) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies, or an exhibit, of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in paragraphs (xvi) and (xvii) below have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(vii) certificates attesting to the Solvency of each Loan Party before and after giving effect to the transactions contemplated by this Agreement and the incurrence of indebtedness related thereto and application of proceeds, from its chief financial officer;
(viii) audited consolidated financial statements of the Borrower for the 2004 and 2005 fiscal years and unaudited consolidated financial statements of the Borrower for any interim quarterly periods that have ended since the most recent of such audited financial statements, which in each case, (1) shall be satisfactory in form and substance to the Lead Arranger and the Lenders, (2) shall not be materially inconsistent with the Information heretofore provided to the Lenders, and (3) shall meet the requirements of Regulation S-X under the Securities Act, and all other accounting rules and regulations of the SEC promulgated thereunder applicable to a registration statement under such Act on Form S-1.
(ix) evidence of the receipt by the Borrower of not less than $250,000,000 cash proceeds from the issuance of Equity Interests of the Borrower;
(x) evidence that the Existing Agreement has been or concurrently with the Closing Date is being terminated and repaid in full;
(xi) such other certificates, documents, or opinions as the Administrative Agent or the Required Lenders reasonably may require;
(xii) any fees required to be paid on or before the Closing Date shall have been paid;
(xiii) unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent);
(xiv) the Closing Date shall have occurred on or before March 31, 2007;
(xv) there shall have been no change, occurrence or development since December 31, 2005 that could reasonably be expected to have a Material Adverse Effect;
(xvi) the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Article IV, the representations and warranties contained in subsections 5.05(a) and (b) of
Conditions Precedent to All Borrowings The obligation of each Lender to make an Advance on the occasion of each Borrowing and of the Issuing Lender to issue, increase, or extend any Letter of Credit shall be subject to the further conditions precedent that on the date of such Borrowing or the date of the issuance, increase, or extension of such Letter of Credit:
(a) the following statements shall be true (and each of the giving of the applicable Notice of Borrowing, or Letter of Credit Application and the acceptance by the Borrower of the proceeds of such Borrowing or the issuance, increase, or extension of such Letter of Credit shall constitute a representation and warranty by the Borrower that on the date of such Borrowing or on the date of such issuance, increase, or extension of such Letter of Credit, as applicable, such statements are true):
(i) the representations and warranties contained in Article IV of this Agreement and the representations and warranties contained in the Security Instruments, the Guaranties, and each of the other Loan Documents are true and correct in all material respects on and as of the date of such Borrowing or the date of the issuance, increase, or extension of such Letter of Credit, before and after giving effect to such Borrowing or to the issuance, increase, or extension of such Letter of Credit and to the application of the proceeds from such Borrowing, as though made on and as of such date except to the extent that any such representation or warranty expressly relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date; and
(ii) no Default has occurred and is continuing or would result from such Borrowing or from the application of the proceeds therefrom, or would result from the issuance, increase, or extension of such Letter of Credit; and
(b) the Administrative Agent shall have received such other approvals, opinions, or documents reasonably deemed necessary or desirable by any Lender as a result of circumstances occurring after the date of this Agreement, as any Lender through the Administrative Agent may reasonably request.
Conditions Precedent to the Initial Advance The obligation of the Lender Group (or any member thereof) to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date:
(a) the Closing Date shall occur on or before October 15, 1998;
(b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts;
(c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) the Disbursement Letter;
(ii) the Pay-Off Letter;
(iii) the Suretyship Agreement;
(iv) the Fee Letter;
(v) the Agents' Side Letter;
(vi) the Intercompany Subordination Agreement;
(vii) the Stock Pledge Agreement;
(viii) Termination statements relative to all financing statements filed by Sprint Communications;
(ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.);
(x) the Hale Xxxordination Agreement;
(xi) the Customer List Escrow Agreement; and 39
(d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel;
(i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts;
(k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion;
(l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement;
(m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest;
(n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders;
(o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment;
(p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses;
(q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and
(r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel.
Conditions Precedent to Initial Loan This effectiveness of this Agreement is subject to the fulfillment, to the reasonable satisfaction of Agent and its counsel, of each of the following conditions (unless otherwise waived by Agent):
(a) Agent shall have received this Agreement and each other Loan Document, executed and delivered by each Borrower and each Lender;
(b) Agent shall have received a UCC search from the Secretary of State of the state of each Borrower’s organization, the results of which shall be satisfactory to Agent, and shall have filed a UCC-1 financing statement in such state, in form and substance satisfactory to Agent with respect to each Borrower;
(c) Agent shall have received a certificate of status with respect each Borrower dated within 20 days of the date of this Agreement, such certificate to be issued by the Secretary of State of the State of the state of each Borrower’s organization, which certificate shall indicate that such Borrower is in good standing in such state;
(d) Agent shall have received a true and correct copy of (i) the certificate of incorporation of FS CREIT and Charter, and (ii) the certificate of formation of Finance Holdings, in each case, certified by the Secretary of State of the State of the state of each Borrower’s organization within 20 days of the date of this Agreement;
(e) Agent shall have received a true and correct copy of (i) the Bylaws, certified by a Responsible Officer of FS CREIT as being a true, correct and complete copy thereof, as in effect as of the date of this Agreement and (ii) the operating agreement of Finance Holdings certified by a Responsible Officer of Finance Holdings as being a true, correct and complete copy thereof, as in effect as of the date of this Agreement;
(f) Agent shall have received a true and correct copy of the Advisory Agreements, certified by a Responsible Officer of FS CREIT as being a true, correct and complete copy thereof, as in effect as of the date of this Agreement;
(g) Agent shall have received a certificate of a Responsible Officer of the Borrowers (i) attesting to the written consent of the board of directors or similar governing body of such Borrower authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents and (ii) attesting to the incumbency and signatures of the Responsible Officers of such Borrower executing on behalf of such Borrower this Agreement and the other Loan Documents.
(h) Agent shall have received full payment of all of the out-of-pocket fees, costs, and expenses of Agent (including the reasonable and documented fees and expenses of Agent’s counsel) incurred in connection with the preparation, negotiation, execution, and delivery of this Agreement and the other Loan Documents;
(i) Agent shall have received the written opinions, dated the date of this Agreement, of counsel to the Borrowers, in form and substance satisfactory to Agent and its counsel;
(j) Agent shall have received a certificate executed by a Responsible Officer of each Borrower to the effect that such Borrower has obtained all orders, consents, approvals, and other authorizations and has made all filings and other notifications (governmental or otherwise) as may be required in connection with the transactions contemplated by the Loan Documents;
(k) no litigation, inquiry, other action or proceeding (governmental or otherwise), or injunction or other restraining order shall be pending or overtly threatened that could reasonably be expected to have, in the reasonable opinion of Agent, a Material Adverse Effect;
(l) Agent shall have received a Compliance Certificate duly executed by a Responsible Officer of Administrative Borrower;
(m) Agent shall have received a Beneficial Ownership Certification with respect to the Borrowers at least two (2) Business Days prior to the Closing Date;
(n) Agent shall have received a Control Agreement with respect to the Distribution Account; and
(o) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered or executed or recorded and shall be in form and substance reasonably satisfactory to Agent and its counsel.
Conditions Precedent to Initial Advance Bank’s obligation to make the initial Advance is subject to the condition precedent that Bank shall have received, in form and substance satisfactory to Bank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation:
(a) duly executed original signatures to the Loan Documents;
(b) duly executed original signatures to the Initial Warrant;
(c) the Operating Documents and long-form good standing certificates of Borrower and its Subsidiaries certified by the Secretary of State (or equivalent agency) of Borrower’s and such Subsidiaries’ jurisdiction of organization or formation and each jurisdiction in which Borrower and each Subsidiary is qualified to conduct business, each as of a date no earlier than thirty (30) days prior to the Effective Date;
(d) duly executed original signatures to the completed Borrowing Resolutions for Borrower;
(e) certified copies, dated as of a recent date, of financing statement searches, as Bank may request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the initial Advance, will be terminated or released;
(f) the Perfection Certificate of Borrower, together with the duly executed original signature thereto;
(g) a copy of Borrower’s Investors’ Rights Agreement and any amendments thereto;
(h) evidence satisfactory to Bank that the insurance policies and endorsements required by Section 6.7 hereof are in full force and effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses or endorsements in favor of Bank;
(i) the completion of the Initial Audit with results satisfactory to Bank in its sole and absolute discretion; and
(j) payment of the fees and Bank Expenses then due as specified in Section 2.4 hereof.
