Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness of the obligations of Lender to make the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein, shall be subject to the satisfaction (or waiver by Lender in its sole discretion) of each of the following conditions precedent (the first date upon which all such conditions precedent have been so satisfied (or so waived) shall be referred to as the “Effective Date”): (a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) shall have been satisfied (or waived by Lender in its sole discretion) on or before the close of business on April 16, 2003; (b) Lender shall have received each of the documents set forth on the Schedule of Documents, in form and substance satisfactory to Lender, each duly executed by the appropriate parties thereto; (c) Lender shall have received a non-refundable capital fee in the amount of $900,000, provided that such amount may be withheld by the Lender from the funding of the additional Term Loans provided for in Section 1.1 above; (d) Lender shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents; (e) no action, proceeding, investigation, regulation, or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document; (f) no Material Adverse Effect shall have occurred since September 29, 2002; (g) each of the representations and warranties made by Borrower in this Agreement and the other Loan Documents shall be true and correct in all respects on and as of the date made, and shall be true and correct in all respects on and as of the Effective Date, with the same effect as if made on and as of the Effective Date; each of the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it on or before the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures; (h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request; (i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower, certifying as to the assumptions on which such financial projections are based; (j) the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor of the Lender, all in form and substance satisfactory to the Lender; (k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests; (l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by Lender.
Appears in 2 contracts
Samples: Loan and Security Agreement (Overhill Farms Inc), Loan and Security Agreement (Levine Leichtman Capital Partners Ii Lp)
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness Article II hereof shall be effective on and as of the obligations of Lender to make date (the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein"Effective Date"), shall be subject to the satisfaction (or waiver by Lender in its sole discretion) of on which each of the following conditions precedent (the first date upon which all such conditions precedent shall have been so satisfied (or so duly waived) shall be referred to as the “Effective Date”)::
(a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) There shall have been satisfied (or waived by Lender in its sole discretion) on or before the close of business on April no adverse change since December 16, 2003;1996 in the corporate and legal structure and capitalization of each A Company, each Designated Operating Company and the Bank, including the terms and conditions of the charter, bylaws and each class of capital stock of each such Person and of each agreement or instrument relating to such structure or capitalization, except as contemplated by existing consents, amendments and waivers delivered in connection with the Existing Credit Agreement; the Lenders shall be satisfied with the corporate and legal structure and capitalization of each of Revlon Guarantor, Revlon Worldwide Parent, Revlon Worldwide Holdings, Consolidated Cigar Holdings and PCT, including the terms and conditions of the charter, by-laws and each class of capital stock of each such Person and of each agreement or instrument relating to such structure or capitalization.
(b) Lender Before giving effect to the transactions contemplated by this Agreement and the Term Credit Agreement, there shall have received each occurred no Material Adverse Change since December 31, 1995 relating to any of the documents set forth on Loan Parties, the Schedule of Documents, in form FN Parties and substance satisfactory to Lender, each duly executed by the appropriate parties thereto;Designated Operating Companies.
(c) Lender There shall have received a non-refundable capital fee in the amount of $900,000, provided that such amount may be withheld by the Lender from the funding of the additional Term Loans provided for in Section 1.1 above;
(d) Lender shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents;
(e) exist no action, proceedingsuit, investigation, regulationlitigation or proceeding affecting any of the Loan Parties, the FN Parties and the Designated Operating Companies pending or legislation shall have been instituted, threatened, or proposed threatened before any court, Governmental Authoritygovernmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect (in the case of clause (a) of the definition thereof, the term "Person" shall refer to such Loan Party, such FN Party or legislative body such Designated Operating Company, as the case may be) or (ii) purports to enjoinaffect the legality, restrainvalidity or enforceability of this Agreement, or prohibitthe Term Credit Agreement, or to obtain damages in respect ofany Note, or that is related to or arises out of, this Agreement or any other Loan Document, any Related Document, any FN Document or the consummation of the transactions contemplated hereby and thereby.
(d) Nothing shall have come to the attention of the Lender Parties in respect of any of the A Companies, the Designated Operating Companies or thereby thatthe Bank that is inconsistent with or different from in any adverse respect any of the results of the due diligence investigations of such Persons conducted in connection with the Original Credit Agreement, in Lender’s sole judgmentthe Second Credit Agreement, would make it inadvisable to consummate the transactions contemplated by this Third Credit Agreement, the Fourth Credit Agreement or any other Loan Document;the Existing Credit Agreement; the Lenders shall be satisfied with the results of their due diligence investigation of Revlon Guarantor, Revlon Worldwide Parent, Revlon Worldwide Holdings, Consolidated Cigar Holdings and PCT; and the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of each A Company, each Designated Operating Company, Consolidated Cigar Holdings, PCT or the Bank as they shall have requested.
(e) The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties and all accrued expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent).
(f) no Material Adverse Effect The Lenders shall have occurred since September 29, 2002;be satisfied that the Borrower has the ability to service the interest payments in respect of the Revolving Credit Facility and the Term Facility.
(g) each Revlon Worldwide Parent shall have (i) issued the Revlon Worldwide Parent Debt on terms and conditions satisfactory to the Lenders (including, without limitation, permitting at least 22.5 million shares of Revlon to be pledged in favor of the representations Collateral Agent) and warranties made by Borrower in this Agreement and (ii) received Net Cash Proceeds from the other Loan Documents shall be true and correct in all respects on and as issuance of the date madeRevlon Worldwide Parent Debt in an amount sufficient, and shall be true and correct in all respects on and as the reasonable judgment of the Effective DateLenders, when aggregated with (A) the same effect as if made on proceeds of any dividends or other distributions paid or payable by MCG (directly or indirectly) to Mafco, (B) other funds available to Mafco for such purposes and as (C) the proceeds of the Effective Date; each of the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it on or before the Effective Date; no Default or Event of Default shall exist and be continuing borrowings under the Existing Loan Agreement or any other Loan Document or shall result from Term Credit Agreement, to defease the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;Revlon Worldwide Bonds.
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower, certifying as to the assumptions on which such financial projections are based;
(j) the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower Mafco and its Subsidiaries under this Agreement and shall have provided for the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor defeasance of the Lender, all in form Revlon Worldwide Bonds on terms and substance satisfactory conditions acceptable to the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents Lenders and such other matters defeasance shall be effective as Lender reasonably requests;
(l) promptly as practicable following the Lender shall have received a Solvency Certificate, 123rd day after the initial borrowing under the Term Credit Agreement but in form and substance satisfactory to any event not later than the Lender, duly executed by Business Day immediately following the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by Lender130th day following such initial borrowing.
Appears in 1 contract
Samples: Revolving Credit Agreement (Andrews Group Inc /De/)
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness of the obligations of Lender to make the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein, Effective Date shall be subject to occur upon the satisfaction (or waiver by Lender in its sole discretion) of each of the following conditions precedent (the first date upon which all such conditions precedent have been so satisfied (or so waived) shall be referred to as the “Effective Date”):precedent:
(a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) Since May 31, 2012, there shall not have been satisfied (or waived by Lender in its sole discretion) on or before the close of business on April 16, 2003;occurred any Material Adverse Effect.
(b) Lender All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have received each been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the documents set forth on Lenders that restrains, prevents or imposes materially adverse conditions upon the Schedule of Documents, in form and substance satisfactory to Lender, each duly executed by the appropriate parties thereto;transactions contemplated hereby.
(c) Lender The Borrower shall have received a nonpaid all reasonable invoiced fees and out-refundable capital fee in the amount of $900,000, provided that such amount may be withheld by the Lender from the funding of-pocket expenses of the additional Term Loans provided for in Section 1.1 above;Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before the Effective Date.
(d) Lender shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents and approvals of all PersonsOn the Effective Date, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents;
(e) no action, proceeding, investigation, regulation, or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
(f) no Material Adverse Effect shall have occurred since September 29, 2002;
(g) each of the representations and warranties made by Borrower in this Agreement and the other Loan Documents following statements shall be true and correct in all respects the Agent shall have received on and as behalf of the date madeLenders a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and shall be warranties contained in Section 5.01 are true and correct in all respects on and as of the Effective Date, with the same effect as if made on and as Table of the Effective Date; each of the covenants, agreements Contents
(ii) No event has occurred and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it is continuing that constitutes a Default.
(e) The Agent shall have received on or before the Effective Date the following, each dated the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the LenderAgent:
(i) A Note to the order of each Lender (if any) that has requested one pursuant to Section 2.19.
(ii) Certified copies of (A) the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, duly executed if any, to be delivered by the President Borrower, (B) all documents evidencing other necessary corporate action and Chief Executive Officer governmental approvals, if any, with respect to this Agreement and such Notes and (C) the Chief Financial Officer certificate of incorporation (which shall be certified by the Secretary of State of the State of Delaware) and by-laws of the Borrower, certifying as to the assumptions on which such financial projections are based;.
(jiii) A certificate of the Secretary or an Assistant Secretary of the Borrower shall have delivered certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Lender certificates of insurance evidencing the policies of insurance required Notes, if any, to be maintained delivered by the Borrower and its Subsidiaries under this Agreement and the other Loan Documentsdocuments to be delivered hereunder.
(iv) A favorable opinion of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx LLP, together with additional insured and lender’s loss payable endorsements counsel for the Borrower, in favor the form of Exhibit D-2.
(v) A certificate of a duly authorized officer of the Lender, all Borrower dated the Effective Date demonstrating compliance with the financial covenant contained in form and substance satisfactory Section 6.02(c) as of the end of the fiscal quarter most recently ended prior to the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified Effective Date as to their respective charter and bylaws and all board of directors resolutions relating which financial statements are referred to in Section 5.01(e) or, if later, for which financial statements have been delivered to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory Lenders pursuant to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by Lender6.01(g).
Appears in 1 contract
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness Article II hereof shall be effective on and as of the obligations of Lender to make date (the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein"Effective Date"), shall be subject to the satisfaction (or waiver by Lender in its sole discretion) of on which each of the following conditions precedent (the first date upon which all such conditions precedent shall have been so satisfied (or so duly waived) shall be referred to as the “Effective Date”)::
(a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) There shall have been no adverse change since June 3, 1996 in the corporate and legal structure and capitalization of each A Company, each Designated Operating Company and the Bank, including the terms and conditions of the charter, bylaws and each class of capital stock of each such Person and of each agreement or instrument relating to such structure or capitalization, except as contemplated by existing consents, amendments and waivers delivered in connection with the Existing Credit Agreement; the Lenders shall be satisfied (with the corporate and legal structure and capitalization of each of National Health Care Group Inc., Revlon Guarantor, Revlon Holdings Inc., Revlon Worldwide Corporation and Revlon, including the terms and conditions of the charter, by-laws and each class of capital stock of each such Person and of each agreement or waived by Lender in its sole discretion) on instrument relating to such structure or before the close of business on April 16, 2003;capitalization.
(b) Lender Before giving effect to the transactions contemplated by this Agreement, there shall have received each occurred no Material Adverse Change since December 31, 1995 relating to any of the documents set forth on Loan Parties, the Schedule of Documents, in form FN Parties and substance satisfactory to Lender, each duly executed by the appropriate parties thereto;Designated Operating Companies.
(c) Lender There shall have received a non-refundable capital fee in the amount of $900,000, provided that such amount may be withheld by the Lender from the funding of the additional Term Loans provided for in Section 1.1 above;
(d) Lender shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents;
(e) exist no action, proceedingsuit, investigation, regulationlitigation or proceeding affecting any of the Loan Parties, the FN Parties and the Designated Operating Companies pending or legislation shall have been instituted, threatened, or proposed threatened before any court, Governmental Authoritygovernmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect (in the case of clause (a) of the definition thereof, the term "Person" shall refer to such Loan Party, such FN Party or legislative body such Designated Operating Company, as the case may be) or (ii) purports to enjoinaffect the legality, restrainvalidity or enforceability of this Agreement, or prohibitany Note, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document, any Related Document, any FN Document or the consummation of the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;and thereby.
(fd) no Material Adverse Effect Nothing shall have occurred since September 29, 2002;
(g) each come to the attention of the representations and warranties made by Borrower Lenders in this Agreement and the other Loan Documents shall be true and correct in all respects on and as respect of any of the date madeA Companies, and shall be true and correct the Designated Operating Companies or the Bank that is inconsistent with or different from in all respects on and as any adverse respect any of the Effective Date, results of the due diligence investigations of such Persons conducted in connection with the same effect as if made on and as of Original Credit Agreement, the Effective Date; each of Second Credit Agreement, the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it on or before the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Third Credit Agreement or the Existing LoansCredit Agreement; the Lenders shall be satisfied with the results of their due diligence investigation of National Health Care Group Inc., the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred Revlon Guarantor, Revlon Holdings Inc., Revlon Worldwide Corporation and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse EffectRevlon; and each of the conditions precedent set forth in this Section 2.1 Lenders shall have been satisfied given such access to the management, records, books of account, contracts and fulfilled; and Lender properties of each A Company, each Designated Operating Company or the Bank as they shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower, certifying as to the assumptions on which such financial projections are based;
(j) the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor of the Lender, all in form and substance satisfactory to the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by Lenderrequested.
Appears in 1 contract
Samples: Revolving Credit Agreement (Andrews Group Inc /De/)
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness Article II hereof shall be effective on and as of the obligations of Lender to make date (the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein"Effective Date"), shall be subject to the satisfaction (or waiver by Lender in its sole discretion) of on which each of the following conditions precedent (the first date upon which all such conditions precedent shall have been so satisfied (or so duly waived) shall be referred to as the “Effective Date”):.
(a) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries, including the terms and conditions of the Constitutive Documents and each class of capital stock or other equity interest of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization.
(b) All of the conditions precedent set forth governmental authorizations, and all of the consents, approvals and authorizations of, and notices and filings to or with, and other actions by, any other Person necessary in this Section 2.1 (connection with any of the Loan Documents or any of the other transactions contemplated thereby, other than this clause the governmental authorizations, and the consents, approvals, authorizations, notices, filings and other actions described on Schedule 4.01(d) hereto, shall have been obtained (a)without the imposition of any conditions that are not reasonably acceptable to the Lender Parties) and shall remain in full force and effect; and all applicable waiting periods shall have expired without any action being taken by any competent authority.
(c) The Lender Parties shall be satisfied that all Existing Debt other than the Debt identified on Schedule 4.01(ff) (the "Surviving Debt") shall have been prepaid, redeemed or defeased in full or otherwise satisfied (or waived by and extinguished and that all such Surviving Debt shall be on terms and conditions satisfactory to the Lender in its sole discretion) on or before the close of business on April 16, 2003;Parties.
(bd) Lender There shall have received each occurred no Material Adverse Change in (i) the Borrower, together with its Subsidiaries, taken as a whole, since April 30, 1997, (ii) the Information provided to the Lender Parties prior to the Closing Date, or (iii) the financial markets, which, in the judgment of the documents set forth on the Schedule of DocumentsLender Parties, in form and substance satisfactory would make it impractical or inadvisable to Lender, each duly executed by the appropriate parties thereto;
(c) Lender shall have received a non-refundable capital fee in the amount of $900,000, provided that such amount may be withheld by the Lender from proceed with the funding of the additional Term Loans provided for in Section 1.1 above;
(d) Lender shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents;Facilities.
(e) There shall exist no action, proceedingsuit, investigation, regulation, litigation or legislation shall have been instituted, threatened, proceeding affecting any Loan Party or proposed any of its Subsidiaries pending or threatened before any court, Governmental Authoritygovernmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect with respect to any Loan Party or any Lender Party other than the matters described on Schedule 3.01(e) (the "Disclosed Litigation") or (ii) purports to affect the legality, validity or legislative body to enjoinenforceability of this Agreement, restrainany Note, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;hereby.
(f) no Material Adverse Effect The Borrower shall have occurred since September 29, 2002;paid all accrued fees and expenses of the Administrative Agent and the Lender Parties (including the accrued fees and expenses of counsel to the Administrative Agent and local counsel to the Lender Parties).
(g) each of All amounts under the representations Existing Credit Agreement shall have been paid in full and warranties made by Borrower in this Agreement and the other Loan Documents all commitments thereunder shall be true and correct in all respects on and as of the date made, and have been terminated.
(h) The Administrative Agent shall be true and correct in all respects on and as of the Effective Date, with the same effect as if made on and as of the Effective Date; each of the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it have received on or before the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement day of the Existing Loan Agreement or Initial Extension of Credit the Existing Loansfollowing, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
dated such day (h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificateunless otherwise specified), in form and substance satisfactory to the LenderAdministrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board of Directors (or persons performing similar functions) of the Borrower and each other Loan Party approving this Agreement, the Notes and each other Loan Document to which it is or is to be a party, and of all documents evidencing other necessary corporate (or the equivalent thereof) action and governmental and other third party approvals and consents, if any, with respect to this Agreement, the Notes and each other Loan Document.
(iii) A copy of the Constitutive Documents of the Borrower and each other Loan Party and each amendment thereto, certified (as of a date reasonably near the date of the Initial Extension of Credit) by the Secretary of State (or similar governmental authority) of the jurisdiction of its organization as being a true and correct copy thereof.
(iv) A copy of a certificate of the Secretary of State (or similar governmental authority) of the jurisdiction of its organization, dated reasonably near the date of the Initial Extension of Credit, listing the charter (or similar Constitutive Document) of the Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to the Borrower's, or such other Loan Party's charter (or similar Constitutive Document) on file in his office, (B) the Borrower and each other Loan Party have paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) the Borrower, and each other Loan Party are duly organized and in good standing under the laws of the State of the jurisdiction of its organization.
(v) A copy of a certificate of the Secretary of State (or the equivalent governmental authority) of each jurisdiction in which any Loan Party is qualified or licensed as a foreign corporation, partnership, limited liability company or other Person, dated reasonably near the date of the Initial Extension of Credit, stating that the Borrower and each other Loan Party are duly qualified and in good standing as a foreign corporation, partnership, limited liability company or other Person in such State and have filed all annual reports required to be filed to the date of such certificate.
(vi) A certificate of the Borrower, and each other Loan Party, signed on behalf of the Borrower and such other Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the Initial Extension of Credit (the statements made in which certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the charter (or similar Constitutive Document) of the Borrower or such other Loan Party since the date of the Secretary of State's (or equivalent authority's) certificate referred to in Section 3.01(k)(iv), (B) a true and correct copy of the bylaws (or similar Constitutive Document) of the Borrower, and such other Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due organization and good standing of the Borrower and such other Loan Party as a Person organized under the laws of the State of the jurisdiction of its organization, and the absence of any proceeding for the dissolution or liquidation of the Borrower or such other Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(vii) A certificate of the Secretary or an Assistant Secretary (or persons performing similar functions) of the Borrower, and each other Loan Party certifying the names and true signatures of the officers of the Borrower and such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder.
(viii) A security agreement in substantially the form of Exhibit D (together with each other security agreement delivered pursuant to Section 5.01(p), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the President Borrower and Chief Executive Officer and the Chief Financial Officer of the Borrowereach other Collateral Grantor, certifying as to the assumptions on which such financial projections are based;together with:
(jA) certificates representing the Borrower shall have delivered Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt referred to therein indorsed in blank,
(B) proper financing statements, completed in a manner satisfactory to the Lender certificates Parties and duly executed by the applicable Loan Party on or before the day of insurance evidencing the policies Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all of the effective financing statements filed in the jurisdictions referred to in clause (B) above that name the Borrower or any other Loan Party as debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,
(E) evidence of the insurance required by the terms of the Security Agreement,
(F) copies of the Assigned Agreements referred to be maintained in the Security Agreement, together with a consent to such assignment, in substantially the form of Exhibit B to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Borrower,
(G) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken.
(ix) A guaranty in substantially the form of Exhibit E duly executed by each of the Subsidiary Guarantors (together with each other guaranty of any such entity delivered pursuant to Section 5.01(p), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty").
(x) Certificates, in the form attached hereto as Exhibit F, attesting to the Solvency of each of the Borrower and its Subsidiaries under this Agreement each Subsidiary Guarantor after giving effect to the Transaction and the other Loan Documentstransactions contemplated hereby, together with additional from its chief financial officer.
(xi) Evidence of insurance naming the Administrative Agent as insured and lender’s loss payable endorsements payee with such responsible and reputable insurance companies or associations, and in favor of the Lendersuch amounts and covering such risks, all in form and substance as is satisfactory to the Lender;Lender Parties.
(kxii) Certified copies of all Material Contracts of each Loan Party and its Subsidiaries.
(xiii) A favorable opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel for the Borrower Loan Parties, in substantially the form of Exhibit G hereto and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as any Lender Party through the Administrative Agent may reasonably requests;request.
(lxiv) A favorable opinion of Shearman & Sterling, counsel for the Lender shall have received a Solvency CertificateAdministrative Agent, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer Lender Parties.
(xv) A certificate of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each chief financial officer of the conditions Borrower to the effect that Consolidated EBITDA of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by Lenderthe Borrower and its Subsidiaries for the 12-month period ended April 30, 1998 is at least $29,700,000.
Appears in 1 contract
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness of the obligations of Lender to make the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein, Effective Date shall be subject to occur upon the satisfaction (or waiver by Lender in its sole discretion) of each of the following conditions precedent (the first date upon which all such conditions precedent have been so satisfied (or so waived) shall be referred to as the “Effective Date”):precedent:
(a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) Since May 31, 2004 there shall not have been satisfied (or waived by Lender in its sole discretion) on or before the close of business on April 16, 2003;occurred and be continuing any Material Adverse Effect.
(b) Lender All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have received each been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the documents set forth on Lenders that restrains, prevents or imposes materially adverse conditions upon the Schedule of Documents, in form and substance satisfactory to Lender, each duly executed by the appropriate parties thereto;transactions contemplated hereby.
(c) Lender The Borrower shall have received a nonpaid all reasonable invoiced fees and out-refundable capital fee in the amount of $900,000, provided that such amount may be withheld by the Lender from the funding of-pocket expenses of the additional Term Loans provided for in Section 1.1 above;Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing.
(d) Lender shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents and approvals of all PersonsOn the Effective Date, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents;
(e) no action, proceeding, investigation, regulation, or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
(f) no Material Adverse Effect shall have occurred since September 29, 2002;
(g) each of the representations and warranties made by Borrower in this Agreement and the other Loan Documents following statements shall be true and correct in all respects the Agent shall have received on and as behalf of the date madeLenders a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and shall be warranties contained in Section 4.01 are true and correct in all respects on and as of the Effective Date, with the same effect as if made on and
(ii) No event has occurred and as of the Effective Date; each of the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it is continuing that constitutes a Default.
(e) The Agent shall have received on or before the Effective Date the following, each dated the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed Agent:
(i) A Note to the order of each Lender (if any) that has requested one pursuant to Section 2.18.
(ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by the President and Chief Executive Officer this Agreement and the Chief Financial Officer execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, certifying as and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the assumptions on which this Agreement and such financial projections are based;Notes.
(jiii) A certificate of the Secretary or an Assistant Secretary of the Borrower shall have delivered certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Lender certificates of insurance evidencing the policies of insurance required Notes, if any, to be maintained delivered by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor of the Lender, all in form and substance satisfactory documents to the Lender;be delivered hereunder.
(kiv) A favorable opinion of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to (ii) Dxxxx Xxxx & Wxxxxxxx, counsel for the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency CertificateBorrower, in the form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by LenderExhibit D-2.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Oracle Corp /De/)
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness of the obligations of Lender to make the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein, Effective Date shall be subject to the satisfaction (or waiver by Lender in its sole discretion) of each not occur unless all of the following conditions precedent (the first date upon which all such conditions precedent have been so satisfied (or so waived) shall be referred to as the “Effective Date”):satisfied:
(a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) shall have Plan Supplement has been satisfied (or waived by Lender in its sole discretion) on or before the close of business on April 16, 2003filed;
(b) Lender the Bankruptcy Court has entered the Confirmation Order and such Confirmation Order has not been stayed, modified, or vacated;
(c) the conditions to the effectiveness of the Exit RBL Facility, and all documentation related thereto, have been satisfied or waived in accordance with the terms thereof and the Exit RBL Agreement is in full force and effect;
(d) all governmental approvals, including Bankruptcy Court approval, necessary to effectuate the Restructuring shall have received each of been obtained and all applicable waiting periods have expired;
(e) all Restructuring Expenses shall have been paid in Cash;
(f) the documents set forth RSA shall be in full force and effect and binding on the Schedule of Documents, in form and substance satisfactory to Lender, each duly executed by the appropriate all parties thereto;
(cg) Lender the Senior Noteholder Backstop Agreement shall have received a non-refundable capital fee be in full force and effect and binding on all parties thereto, and the Backstop Order (as defined in the amount of $900,000, provided that such amount may be withheld by the Lender from the funding of the additional Term Loans provided for in Section 1.1 above;
(dRSA) Lender shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents;
(e) no action, proceeding, investigation, regulation, or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
(f) no Material Adverse Effect shall have occurred since September 29, 2002;
(g) each of the representations and warranties made by Borrower in this Agreement and the other Loan Documents shall be true and correct in all respects on and as of the date made, and shall be true and correct in all respects on and as of the Effective Date, with the same effect as if made on and as of the Effective Date; each of the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it on or before the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Venturesentered;
(h) Lender each of the Definitive Documents shall have received all other reports, certificates, statements, or opinions as Lender may reasonably requestsatisfied the consent requirements of the Requisite Creditors in accordance with the RSA;
(i) the Borrower amended certificate of incorporation of Reorganized Halcón Parent shall have delivered to been filed with the Lenderappropriate Governmental Unit, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower, certifying as to the assumptions on which such financial projections are based;applicable; and
(j) the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan DocumentsDebtors, together with additional insured and lender’s loss payable endorsements the Subscription Agent (as defined in favor of the LenderRights Offering Procedures), all in form and substance satisfactory to the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory to proceeds of at least $150,150,000 for the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer issuance of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, New Common Shares in connection with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by LenderSenior Noteholder Rights Offering.
Appears in 1 contract
Samples: Restructuring Support Agreement (Halcon Resources Corp)
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness of the obligations of Lender to make the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein, shall be Agreement are subject to the satisfaction (or waiver by Lender in its sole discretion) of each of the following conditions condition precedent (the first date upon which all such conditions precedent have been so satisfied (or so waived) shall be referred to as the “Effective Date”):
(a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) that Bank shall have been satisfied (or waived by Lender in its sole discretion) on or before the close of business on April 16, 2003;
(b) Lender shall have received each of the documents set forth on the Schedule of Documentsreceived, in form and substance satisfactory to LenderBank, each such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation:
(a) duly executed copy of this Agreement;
(b) the Operating Documents of each Loan Party and good standing certificates of each Loan Party certified by the appropriate parties theretoSecretary of State of the State (or equivalent agency) of such Loan Party’s jurisdiction of organization, in each case as of a date no earlier than thirty (30) days prior to the Effective Date;
(c) Lender shall have received a non-refundable capital fee in the amount of $900,000, provided that such amount may be withheld by the Lender from the funding duly executed copy of the additional Term Loans provided for in Section 1.1 aboveNote Purchase Agreement;
(d) Lender shall have received satisfactory evidence that certificate duly executed by a Responsible Officer or secretary of each of Borrower Loan Party attaching (i) its Operating Documents, (ii) customary authorizing resolutions, (iii) incumbency signatures and Overhill Ventures have obtained all required Consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents(iv) each good standing certificate described in clause (b) above;
(e) no action, proceeding, investigation, regulation, or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages payment of all outstanding Bank Expenses incurred by Bank in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of connection with the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate and the transactions contemplated by this Agreement or any other Loan Document;Plan; and
(f) no Material Adverse Effect shall have occurred since September 29, 2002;
(g) each of the representations and warranties made by Borrower in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the Effective Date; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date made, and shall be true and correct in all material respects on and as of such date;
(g) other than to the Effective Date, with extent in existence before the same effect Cases or as if made on and as a result of the Effective Date; each of the covenantsCases, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it on or before the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, as of or would result from on the funding, advance Effective Date or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of after giving effect to the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by Credit Extension requested on the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill VenturesEffective Date;
(h) Lender shall have received all other reportsthe entry of the Confirmation Order, certificates, statements, or opinions as Lender may reasonably requestupon terms satisfactory to the Bank;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed consummation of all other transactions contemplated by the President and Chief Executive Officer and Plan to occur substantially concurrently with the Chief Financial Officer of Effective Date, including all transactions contemplated by the Borrower, certifying as to the assumptions on which such financial projections are based;Investment Agreement; and
(j) the Borrower Bank shall have delivered received all fees, charges and expenses to the Lender certificates of insurance evidencing the policies of insurance required extent due and payable to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor of the Lender, all in form and substance satisfactory it on or prior to the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as such date pursuant to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory to the Lender, duly executed by extent invoiced two (2) Business Days prior to the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by LenderEffective Date).
Appears in 1 contract
Samples: Loan and Security Agreement (Sunlight Financial Holdings Inc.)
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness of the obligations of Lender to make the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein, shall be Agreement is subject to the satisfaction (or waiver by Lender in its sole discretion) fulfillment of each of the following conditions precedent (the first date upon which all such conditions precedent have been so satisfied (or so waived) shall be referred to as the “Effective Date”):conditions:
(a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) shall have been satisfied (or waived by Lender in its sole discretion) on or before the close of business on April 16, 2003;
(b) Lender The Administrative Agent shall have received each of the documents set forth on the Schedule of Documentsfollowing, in form and substance satisfactory to Lender, each the Administrative Agent:
(i) This Agreement duly executed by the appropriate parties theretoBorrower, the Lenders, and the Administrative Agent;
(cii) Any Loan Notes requested by any Lender shall have received a non-refundable capital fee in the amount of $900,000, provided that such amount may be withheld duly executed by the Lender from the funding of the additional Term Loans provided for in Section 1.1 aboveBorrower;
(diii) Customary legal opinions of Xxxxxx Bond Xxxxxxxxx (US) LLP, counsel to the Credit Parties, addressed to the Lender shall have received satisfactory evidence that Group, covering the transactions contemplated by the Loan Documents;
(iv) [Reserved];
(v) A certificate signed by an Authorized Signatory of each of Borrower and Overhill Ventures have obtained all required Consents and approvals of all PersonsCredit Party, including all requisite Governmental Authoritiesa certificate of incumbency with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include the following: (A) a copy of the certificate of incorporation or formation, articles of organization, or similar organizational document of such Person certified to be true, complete and correct by the Secretary of State (or relevant equivalent office) of the State of such Person’s incorporation or formation, (B) a true, complete and correct copy of the bylaws, operating agreement, partnership agreement, limited liability company agreement, or similar organizational document of such Person, (C) a true, complete and correct copy of the resolutions (including, without limitation, board resolutions and shareholder resolutions, as applicable) of such Person authorizing the execution, delivery and performance by such Person of the Loan Documents, and with respect to the Borrower, authorizing the borrowings hereunder, and (D) certificates of good standing, existence, or similar appellation from each jurisdiction in which such Person is organized and, to the extent failure to be so qualified in any other jurisdiction could reasonably be expected to have a Materially Adverse Effect, foreign qualifications in those jurisdictions in which such Person is required to be qualified to do business; provided that if a document referenced in clause (A) or (B) was delivered in connection with the Revolving Credit Agreement or not required to be delivered in connection with the Revolving Credit Agreement, then delivery of such document shall not be required so long as the applicable Credit Party delivers an officer’s certificate certifying that no changes have been made to such document, and such document remains in full force and effect;
(vi) An officer’s certificate executed by a Financial Officer of the Borrower certifying (A) the solvency of the Credit Parties, taken as a whole, as of the Effective Date, (B) that as of the Effective Date, both before and after the effectiveness of this Agreement and the other Loan Documents;
Documents (ex) no action, proceeding, investigation, regulation, or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
(f) no Material Adverse Effect shall have occurred since September 29, 2002;
(g) each all of the representations and warranties made by Borrower in this Agreement and the other Loan Documents shall be true and correct in all respects on and as of the date made, and shall be true and correct in all respects on and as of the Effective Date, with the same effect as if made on and as of the Effective Date; each of the covenants, agreements and obligations of Borrower Credit Parties under this Agreement and the other Loan Documents are true and correct in all material respects (provided that if any representation or warranty already includes a materiality or material adverse effect qualifier, such representation or warranty is true and correct in all respects and if any such representation or warranty expressly relates to a prior date, such representation or warranty shall be performed or satisfied by it so true and correct on or and as of such prior to the Effective Date has been performed or satisfied by it on or before the Effective Date; date) and (y) no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default is in existence, (C) that there has been no materially adverse change to the financial information previously delivered to the Administrative Agent under Section 4.1(d) below, (D) that no change in the business, financial condition, results of operations, liabilities (contingent or result in otherwise), or properties of the Borrower and its Subsidiaries (taken as a Material whole) shall have occurred since December 31, 2023, which change has had or would be reasonably expected to have a Materially Adverse Effect; , and each (E) that (x) all material Necessary Authorizations are in full force and effect, are not subject to any pending or threatened reversal or cancellation, and all applicable waiting periods have expired, and that there is no ongoing investigation or inquiry by any Governmental Authority regarding the Loans or the Loan Documents and (y) attached thereto are true, correct, and complete copies of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officerall such material Necessary Authorizations, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Venturesif any;
(hvii) Lender shall have received Payment of all other reportsfees payable to the Administrative Agent, certificatesthe Affiliates of the Administrative Agent, statementsand the Lenders in connection with the execution and delivery of this Agreement, or opinions as Lender may reasonably requestand payment of fees and expenses of counsel to the Administrative Agent;
(iviii) the Borrower shall have delivered [Reserved];
(ix) An amendment to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the LenderRevolving Credit Agreement, duly executed by the President and Chief Executive Officer Borrower, the Lenders, and the Chief Financial Officer of Administrative Agent (each as defined therein); and
(x) All such other documents as the BorrowerAdministrative Agent may reasonably request, certifying as to the assumptions on which such financial projections are basedcertified by an appropriate governmental official or an Authorized Signatory if so requested;
(jb) The Lead Arrangers and the Borrower Administrative Agent shall have delivered completed their financial, regulatory, and legal due diligence of the Credit Parties, and all credit investigations and background checks, and the results, form, and substance of each of the foregoing items shall be satisfactory to the Lender certificates Administrative Agent;
(c) The Lead Arrangers and the Administrative Agent shall be satisfied that no change in the business, financial condition, results of insurance evidencing the policies operations, liabilities (contingent or otherwise), or properties of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents(taken as a whole) shall have occurred since December 31, together with additional insured and lender’s loss payable endorsements in favor of the Lender2023, all in form and substance satisfactory which change has had or would be reasonably expected to the Lenderhave a Materially Adverse Effect;
(kd) The Lead Arrangers and the Administrative Agent shall have received (i) U.S. GAAP audited consolidated balance sheets of the Borrower and Overhill Ventures its Subsidiaries and the related consolidated statements of comprehensive income, equity and cash flows for the three most recent fiscal years ended at least 60 days prior to the Effective Date and (ii) U.S. GAAP unaudited consolidated balance sheets of the Borrower and its Subsidiaries and the related consolidated statements of comprehensive income and cash flows for each subsequent fiscal quarter ended at least 40 days before the Effective Date (excluding the fourth quarter of any such fiscal year); provided that in each case the foregoing financial statements required to be delivered by this clause (d) shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws meet the requirements of Regulation S-X under the Securities Act, and all board other accounting rules and regulations of directors resolutions relating the Securities and Exchange Commission promulgated thereunder applicable to a registration statement under such Act on Form S-3; provided further that the Borrower’s filing of any required audited financial statements with respect to the authorization Borrower on Form 10-K or required unaudited financial statements with respect to the Borrower on Form 10-Q, in each case, will satisfy the requirements under subclauses (i) or (ii), as applicable, of the Loan Documents and such other matters as Lender reasonably requeststhis clause (d);
(le) [Reserved];
(f) The Lead Arrangers and the Lender Administrative Agent shall have received, no later than three (3) Business Days prior to the Effective Date, all documentation and other information with respect to the Borrower, Defender, Dogwood and their respective Subsidiaries that the Lead Arrangers and the Administrative Agent reasonably determine is required by United States regulatory authorities under any applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case, that shall have been reasonably requested by the Administrative Agent or the Lenders at least ten (10) Business Days prior to the Effective Date; and
(g) The Administrative Agent shall have received a Solvency Certificatefrom the Lenders all tax forms and certificates required by Section 2.9. On the Effective Date, in form and substance satisfactory to the Lender, duly executed by Administrative Agent will notify the President and Chief Executive Officer Lenders and the Chief Financial Officer Borrower in writing of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each occurrence of the conditions Effective Date, which notice shall be conclusive evidence of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by Lenderthe occurrence of the Effective Date.
Appears in 1 contract
Conditions Precedent to Effective Date. The effectiveness Effective Date shall be deemed to have occurred when all of the following conditions have been satisfied, as evidenced by a certificate signed by Landlord and Tenant:
(a) This Lease shall have been duly authorized, executed and delivered by Landlord and Tenant.
(b) Upon receipt of the consent of the existing lender or trustee on the Existing Financing to Landlord and Tenant entering into this Agreement, including the effectiveness of Lease and to Tenant assuming the obligations of Lender Landlord for repair, maintenance and operation of the Sewage Disposal System, which shall have been duly executed and delivered to make Landlord and Tenant and shall be in full force and effect, Tenant and Landlord shall enter into an agreement for Tenant to reimburse up to Two Hundred Thousand ($200,000.00) of the additional Term Loans Landlord’s obligations under the Existing Financing which remains after the application of any Current Surplus to Borrower the outstanding indebtedness pursuant to Section 2.1(h)(i) or (ii). Such agreement, when executed, shall be attached hereto as provided in Section 1 above Exhibit “F” and incorporated herein [delete if NA].
(c) Landlord shall have delivered to perform any Tenant all Sewage Disposal System Due Diligence Materials, all of its other obligations as provided for herein, which shall be subject to the satisfaction (or waiver by Lender in its sole discretion) of each of the following conditions precedent (the first date upon which all such conditions precedent have been so satisfied (or so waived) shall be referred to as the “Effective Date”):
(a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) shall have been satisfied (or waived by Lender in its sole discretion) on or before the close of business on April 16, 2003;
(b) Lender shall have received each of the documents set forth on the Schedule of Documents, in form Tenant’s review and substance satisfactory to Lender, each duly executed by the appropriate parties thereto;
(c) Lender shall have received a non-refundable capital fee in the amount of $900,000, provided that such amount may be withheld by the Lender from the funding of the additional Term Loans provided for in Section 1.1 above;approval.
(d) Lender Tenant shall have received satisfactory evidence that each of Borrower secured all permits and Overhill Ventures have obtained all required Consents and other governmental approvals of all Personsnecessary to operate the Sewage Disposal System, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents;which are set forth in Exhibit “C” attached hereto.
(e) no action, proceeding, investigation, regulation, or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
(f) no Material Adverse Effect shall have occurred since September 29, 2002;
(g) each of the representations Tenant and warranties made by Borrower in this Agreement and the other Loan Documents shall be true and correct in all respects on and as of the date made, and shall be true and correct in all respects on and as of the Effective Date, with the same effect as if made on and as of the Effective Date; each of the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it on or before the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender Landlord shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered opinion from bond counsel to the Lender, and effect that the Lender shall have approved, lease of the Projections. The Projections shall be accompanied by an Officers’ CertificateSewage Disposal System to Tenant will not, in form and substance satisfactory to of themselves, materially impair the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer tax-exempt status of the Borrowerinterest on the Existing Financing, certifying as to the assumptions on which such financial projections are based;
(j) the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor of the Lender, all in form and substance satisfactory to the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If if any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by Lender[delete if NA].
Appears in 1 contract
Samples: Sewage Disposal System Lease
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness obligations of the obligations of Lender to amend and restate the Original Revolving Credit Agreement and make the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein, Commitment available hereunder shall be subject to the satisfaction (or waiver by Lender in its sole discretion) fulfillment of each of the following conditions precedent (the first date upon which all such conditions precedent have been so satisfied (or so waived) shall be referred to as the “Effective Date”):
(a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) shall have been satisfied (or waived by Lender in its sole discretion) on or before the close of business on April 16, 2003;Effective Date in a manner satisfactory to the Lender:
(bi) The Lender shall have received the following documents, each dated and in form and substance as is satisfactory to the Lender:
(1) certified copies of the resolution(s) of the Board of Commissioners of the Authority approving the execution and delivery of this Agreement, the Bank Note and the Fourth Supplemental Indenture, certified by an authorized official of the Authority as being true and complete and in full force and effect on the Effective Date;
(2) certified copies of all approvals, authorizations and consents of any trustee, or holder of any indebtedness or obligation of the Authority or any Governmental Authority necessary for the Authority to enter into each of this Agreement, the Bank Note and the Indenture and the transactions contemplated herein and therein;
(3) reserved;
(4) an executed certificate of an authorized official of the Authority dated the Effective Date certifying as to the authority, incumbency and specimen signatures of the authorized officials authorized to sign this Agreement and the Bank Note and any other documents to be delivered by it hereunder and who will be authorized to represent the Authority in connection with this Agreement, upon which the Lender may rely until it receives a new such certificate;
(5) an executed Authorized Representative Certificate;
(6) reserved;
(7) an executed or certified copy, as applicable, of each of the documents Program Documents;
(8) an executed copy of the Bank Note with the original wet ink Bank Note to follow promptly after the Effective Date; and
(9) an IRS Form W-9 duly completed by the Authority.
(ii) There shall not have occurred any change or any development involving a prospective change in the financial or operating condition of the Authority or its ability to pay the Obligations from that set forth on in the Schedule audited annual financial statements of the Authority for the Fiscal Year ended June 30, 2023, provided to the Lender, that in the judgment of the Lender is material or adverse to the Lender. No law, regulation, ruling or other action of the United States, the State of California or the State of New York or any political subdivision or authority therein or thereof shall be in effect or shall have occurred, the effect of which would be to prevent the Authority or the Lender from fulfilling its respective obligations under this Agreement and the other Program Documents.
(iii) The Lender shall have received an opinion addressed to the Lender and dated the Effective Date from [Xxxxxx Xxxx], counsel to the Authority, in form and substance reasonably satisfactory to Lender, each duly executed by the appropriate parties thereto;
(c) Lender shall have received a non-refundable capital fee in the amount of $900,000, provided that such amount may be withheld by the Lender from and its counsel, which provides for, among other opinions, the funding of the additional Term Loans provided for in Section 1.1 above;
following: (d1) Lender shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance by the Authority of this Agreement Agreement, the Bank Note and the other Loan Documents;
(e) no Indenture are within the Authority’s powers, have been duly authorized by all necessary action, proceeding, investigation, regulation, and require no action by or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or filing with, any governmental body, agency or official that is related to has not been accomplished and such execution, delivery and performance does not violate the constitution or arises out of, this Agreement or any other Loan Document or the consummation laws of the transactions contemplated hereby or thereby thatState, in Lender’s sole judgment(2) this Agreement, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
(f) no Material Adverse Effect shall Bank Note and the Indenture have occurred since September 29been duly authorized, 2002;
(g) each of the representations executed and warranties made by Borrower in delivered and this Agreement and the other Loan Documents shall be true Bank Note are valid, binding and correct in all respects on and as of enforceable against the date madeAuthority, and shall be true and correct in all respects on and (3) such other matters as of the Effective Date, with the same effect as if made on and as of the Effective Date; each of the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it on or before the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed by the President Lender and Chief Executive Officer and the Chief Financial Officer of the Borrower, certifying as to the assumptions on which such financial projections are based;its counsel.
(jiv) The following statements shall be true and correct on the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower Effective Date, and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor of the Lender, all in form and substance satisfactory to the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificatecertificate signed by an Authorized Representative, dated the Effective Date, certifying that:
(1) (A) the representations and warranties of the Authority contained in the Indenture, the Bank Note and this Agreement are true and correct on and as of the Effective Date as though made on and as of such date (except to the extent any such representation or warranty specifically relates to an earlier date, then such representation or warranty shall be true and correct as of such earlier date); (B) no Default or Event of Default has occurred and is continuing or would result from the Authority’s execution and delivery of this Agreement or the Bank Note or the acceptance of the Commitment by the Authority; (C) the audited annual financial statements of the Authority for the Fiscal Year ended June 30, 2023, including the balance sheet as of such date of said period, all examined and reported on by Xxxx Xxxxxx LLP as heretofore delivered to the Lender correctly and fairly present the financial condition of the Authority as of said date and the results of the operations of the Authority for such period, have been prepared in accordance with GAAP consistently applied except as stated in the notes thereto; (D) since June 30, 2023, except as disclosed to the Lender in writing, there has been no Material Adverse Change or Material Adverse Operational Effect; (E) the acceptance of the Commitment by the Authority pursuant to this Agreement is an arm’s length commercial transaction between the Authority and the Lender; (F) the Authority has consulted with its own respective legal and financial advisors in connection with the acceptance of the Commitment by the Authority pursuant to this Agreement; (G) the Lender has not acted as a fiduciary in favor of the Authority with respect to the Bank Note or the acceptance of the Commitment by the Authority; (H) all conditions precedent set forth in the Indenture with respect to issuance of the Bank Note shall have been satisfied and (I) to the best knowledge of the Authority, the Authority Rating has not been reduced, withdrawn or suspended by any Rating Agency since the dated date of the Rating Documentation; and
(2) No actions, suits or proceedings are pending in which service of process has been completed against the Authority or, to the Authority’s knowledge, threatened against the Authority in any court or before any arbitrator of any kind or before or by any governmental or non-governmental body which could reasonably be expected to result in a Material Adverse Effect or a Material Adverse Operational Effect.
(v) The Lender shall have received an opinion addressed to the Lender and dated the Effective Date of Bond Counsel as to the due authorization, execution and delivery of this Agreement, the Bank Note and the Indenture, and as to the validity and enforceability with respect to the Authority of this Agreement, the Bank Note and the Indenture, the exclusion of interest on the Loans from gross income for federal income tax purposes of the Lender, the pledge of Revenues securing the Bank Note constituting a valid pledge, and such other matters as the Lender may reasonably request, in form and substance satisfactory to the LenderLender and its counsel.
(vi) All necessary action on the part of the Authority shall have been taken as required for the assignment and pledge of a lien on the Revenues for the benefit of the Lender as described in Section 5.1 hereof.
(vii) All other legal matters pertaining to the execution and delivery of this Agreement, duly executed by the President and Chief Executive Officer Bank Note and the Chief Financial Officer other Program Documents shall be satisfactory to the Lender and its counsel. The Lender shall have received evidence satisfactory to the Lender that all conditions precedent to the issuance of the Borrower. If any other term of any Loan Document should conflict, or appear Bank Note as Parity Debt pursuant to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower Indenture have been satisfied.
(viii) The Lender shall have no rights under this Agreement received written confirmation dated within ten (10) days prior to the Effective Date that the Authority Ratings are at least “AA” (or its equivalent) by S&P and “AA” (or its equivalent) by Fitch (referred to herein as the “Rating Documentation”).
(ix) No Bank Note shall be (i) assigned a specific rating by any Rating Agency, (ii) registered with The Depository Trust Company or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by Lender.securities depository,
Appears in 1 contract
Samples: Revolving Credit Agreement
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness Article II hereof shall be effective on and as of the obligations of Lender to make date (the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein"Effective Date"), shall be subject to the satisfaction (or waiver by Lender in its sole discretion) of on which each of the following conditions precedent (the first date upon which all such conditions precedent shall have been so satisfied (or so duly waived) shall be referred to as the “Effective Date”)::
(a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) There shall have been no adverse change since June 3, 1996 in the corporate and legal structure and capitalization of each A Company, each Designated Operating Company and the Bank, including the terms and conditions of the charter, bylaws and each class of capital stock of each such Person and of each agreement or instrument relating to such structure or capitalization, except as contemplated by existing consents, amendments and waivers delivered in connection with the Existing Credit Agreement; the Lenders shall be satisfied (with the corporate and legal structure and capitalization of each of National Health Care Group Inc., Revlon Guarantor, Revlon Holdings Inc., Revlon Worldwide Corporation and Revlon, including the terms and conditions of the charter, by-laws and each class of capital stock of each such Person and of each agreement or waived by Lender in its sole discretion) on instrument relating to such structure or before the close of business on April 16, 2003;capitalization.
(b) Lender Before giving effect to the transactions contemplated by this Agreement, there shall have received each occurred no Material Adverse Change since December 31, 1995 relating to any of the documents set forth on Loan Parties, the Schedule of Documents, in form FN Parties and substance satisfactory to Lender, each duly executed by the appropriate parties thereto;Designated Operating Companies.
(c) Lender There shall have received a non-refundable capital fee in the amount of $900,000, provided that such amount may be withheld by the Lender from the funding of the additional Term Loans provided for in Section 1.1 above;
(d) Lender shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents;
(e) exist no action, proceedingsuit, investigation, regulationlitigation or proceeding affecting any of the Loan Parties, the FN Parties and the Designated Operating Companies pending or legislation shall have been instituted, threatened, or proposed threatened before any court, Governmental Authoritygovernmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect (in the case of clause (a) of the definition thereof, the term "Person" shall refer to such Loan Party, such FN Party or legislative body such Designated Operating Company, as the case may be) or (ii) purports to enjoinaffect the legality, restrainvalidity or enforceability of this Agreement, or prohibitany Note, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document, any Related Document, any FN Document or the consummation of the transactions contemplated hereby and thereby.
(d) Nothing shall have come to the attention of the Lender Parties in respect of any of the A Companies, the Designated Operating Companies or thereby thatthe Bank that is inconsistent with or different from in any adverse respect any of the results of the due diligence investigations of such Persons conducted in connection with the Original Credit Agreement, in Lender’s sole judgmentthe Second Credit Agreement, would make it inadvisable to consummate the transactions contemplated by this Third Credit Agreement or any other Loan Document;the Existing Credit Agreement; the Lenders shall be satisfied with the results of their due diligence investigation of National Health Care Group Inc., Revlon Guarantor, Revlon Holdings Inc., Revlon Worldwide Corporation and Revlon; and the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of each A Company, each Designated Operating Company or the Bank as they shall have requested.
(e) The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties and all accrued expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent).
(f) no Material Adverse Effect The Lenders shall have occurred since September 29, 2002;
(g) each be satisfied that the Borrower has the ability to service the interest payments in respect of the representations and warranties made by Borrower in this Agreement and the other Loan Documents shall be true and correct in all respects on and as of the date made, and shall be true and correct in all respects on and as of the Effective Date, with the same effect as if made on and as of the Effective Date; each of the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it on or before the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower, certifying as to the assumptions on which such financial projections are based;
(j) the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor of the Lender, all in form and substance satisfactory to the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by LenderFacilities.
Appears in 1 contract
Samples: Revolving Credit Agreement (Andrews Group Inc /De/)
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness occurrence of the obligations of Lender to make the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein, shall be Effective Date is subject to the satisfaction (or waiver by Lender in its sole discretion) of each of the following conditions precedent (the first date upon which all such conditions precedent have been so satisfied (or so waived) shall be referred to as the “Effective Date”):precedent:
(a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) Administrative Agent shall have received evidence that the First Lien Notes and the Second Lien Notes shall have been satisfied issued pursuant to the First Lien Indenture and the Second Lien Indenture in an aggregate amount of not less than the sum of $1,100,000,000 plus the Effective Date Reduction Amount (or waived by Lender in its sole discretionof which amount not more than an amount equal to the sum of $500,000,000 plus the Effective Date Reduction Amount shall be attributable to the issuance of the First Lien Notes), and the net cash proceeds thereof shall have been remitted to the Administrative Agent; provided that on and after giving effect to the transactions to occur on the Effective Date (i) on or before the close aggregate amount of business on April 16, 2003First Lien Obligations shall not exceed $1,400,000,000 and (ii) the aggregate amount of First Lien Obligations and Second Lien Obligations shall not exceed $2,000,000,000;
(b) Lender the Administrative Agent shall have received each of evidence that the documents Replacement Lenders shall have made the Term Loans contemplated by Section 2.01 in the amounts set forth on Schedule 2.01 and that concurrently with the Schedule occurrence of Documentsthe Effective Date, the Existing Loans have been repaid (and any corresponding commitments have been terminated) in form and substance satisfactory an aggregate amount which reduces the outstanding principal balance of the Loans to Lender, each duly executed by $900,000,000 less the appropriate parties theretoEffective Date Reduction Amount;
(c) Lender the Administrative Agent shall have received a non-refundable capital fee in the amount of $900,000, provided that such amount may be withheld by the Lender from the funding of the additional Term Loans provided for in Section 1.1 aboveSponsor Equity Contributions;
(d) Lender shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents and approvals the Circus Deeds of all PersonsTrust, including all requisite Governmental Authoritiesthe MGM Resorts Completion Guarantee, to the execution, delivery and performance of this First Lien Intercreditor Agreement and the other Loan DocumentsGeneral Intercreditor Agreement shall have been duly executed by the relevant parties and shall have become effective by their respective terms;
(e) no action, proceeding, investigation, regulation, all fees and expenses required to be paid to the Administrative Agent and MLPFS on or legislation before the Effective Date shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body paid and the Administrative Agent shall have received and shall be in a position to enjoin, restrain, or prohibit, or pay to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or all Lenders the consummation of the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions fees contemplated by this Agreement or any other Loan DocumentSection 2.06;
(f) no Material Adverse Effect none of the final offering memorandum in respect of the First Lien Notes and the Second Lien Notes, the First Lien Indenture nor the Second Lien Indenture shall have occurred since September 29, 2002contain any terms or provisions which are materially adverse to the Lender Secured Parties and materially different from those in the Draft Offering Memo unless otherwise agreed by the Required Lenders;
(g) each of the representations and warranties made by Borrower in this Agreement and the other Loan Documents shall be true and correct in all respects on and as of the date made, and shall be true and correct in all respects on and as of the Effective Date, with the same effect as if made on and as of the Effective Date; each of the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it on or before the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuingexist, or would result from the fundingoccurrence of the Effective Date; and
(h) the Administrative Agent shall have received opinions of Xxxxxx, advance or incurrence Xxxx & Xxxxxxxx LLP, special counsel to Borrower and its Subsidiaries, Lionel, Xxxxxx and Xxxxxxx, Nevada counsel to Borrower and its Subsidiaries, and Xxxx Xxxxxxx & Xxxxxx, LLP, counsel to MGM Resorts and its Subsidiaries, covering such matters, as the Administrative Agent may request and addressed to the Administrative Agent, the Collateral Agent and each Lender. Upon the satisfaction of any Term Loanthe foregoing conditions, that constitutes or would constitute a Default or an Event of Default or result the Administrative Agent is hereby authorized to, and shall, make the payments contemplated by Section 2.01 and Section 2.06, remit the amounts described in a Material Adverse Effect; Section 4.01(a)(xxi) above to the Interest Escrow Account and this Agreement shall concurrently become effective to amend and restate the Existing Credit Agreement in its entirety. Notwithstanding the foregoing, unless each of the conditions precedent set forth in this Section 2.1 4.02 is satisfied prior to 5:00 p.m., New York City time, on January 31, 2010, the Effective Date shall have been satisfied and fulfilled; and Lender not occur, this Agreement shall have received an officers’ certificate not become effective, the commitments of the Replacement Lenders to that effect signed by the President and Chief Executive Officer make replacement Term Loans hereunder shall terminate and the Chief Financial Officer, which Existing Credit Agreement shall also include certifications remain in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower, certifying as to the assumptions on which such financial projections are based;
(j) the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor of the Lender, all in form and substance satisfactory to the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by Lenderfull effect.
Appears in 1 contract
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness Article II hereof shall be effective on and as of the obligations of Lender to make date (the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein"Effective Date"), shall be subject to the satisfaction (or waiver by Lender in its sole discretion) of on which each of the following conditions precedent (the first date upon which all such conditions precedent shall have been so satisfied (or so duly waived) shall be referred to as the “Effective Date”)::
(a) All The final terms and conditions of the conditions precedent set forth Acquisition, including, without limitation, all legal and tax aspects thereof, shall be (i) as described in this Section 2.1 the Commitment Letter dated June 19, 1997 from Fleet to the Borrower and otherwise consistent in all material respects with the description thereof received in writing as part of the Pre-Commitment Information and (other than this clause (a)ii) shall have been satisfied (or waived by Lender in its sole discretion) on or before otherwise reasonably satisfactory to the close of business on April 16, 2003;Lenders.
(b) Lender The Stock Purchase Agreement shall have received each of the documents set forth on the Schedule of Documents, be in form full force and substance satisfactory to Lender, each duly executed by the appropriate parties thereto;effect.
(c) Lender The Acquisition shall have received a non-refundable capital fee been consummated in all material respects in accordance with the amount of $900,000Stock Purchase Agreement, provided that such amount may be withheld without any waiver or amendment not consented to by the Lender from the funding Parties of the additional Term Loans provided for any material term, provision or condition set forth therein, and in Section 1.1 above;compliance with all applicable laws.
(d) The Lender Parties shall have received satisfactory evidence be satisfied in their reasonable discretion that each the restrictions in Section 2.03 of Borrower and Overhill Ventures have obtained all required Consents and approvals of all Persons, including all requisite Governmental Authorities, the Delaware General Corporation Law are not applicable to the execution, delivery and performance of this Agreement and Acquisition or that any conditions to avoiding the other Loan Documents;restrictions contained therein have been satisfied.
(e) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of the Company and each of its Subsidiaries, including the terms and conditions of the charter, bylaws and each class of capital stock of the Company and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization.
(f) The Lender Parties shall be satisfied with the terms and conditions of the common equity (the "Equity") provided on or prior to the consummation of the Acquisition by the Equity Investors; and Holding shall have received at least $49,750,000 in gross cash proceeds from the Equity.
(g) The Lender Parties shall be satisfied that all Existing Debt, other than the Debt of the Borrower set forth on Schedule XIV (the "Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished.
(h) Before giving effect to the Acquisition and the other transactions contemplated by this Agreement, there shall have occurred no material adverse change in the business condition (financial or otherwise), operations, performance, properties or prospects of (x) the Borrower and its Subsidiaries, taken as a whole, since May 3, 1997 and (y) the Company and its Subsidiaries, taken as a whole, since May 24, 1997.
(i) There shall exist no action, proceedingsuit, investigation, regulation, litigation or legislation shall have been instituted, threatened, proceeding affecting any Loan Party or proposed any of its Subsidiaries pending or threatened before any court, Governmental Authoritygovernmental agency or arbitrator that (i) could reasonably be expected to have a material adverse effect on the business, condition (financial or otherwise), operations, performance, properties or prospects of (x) the Borrower and its Subsidiaries, taken as a whole, or legislative body (y) the Company and its Subsidiaries, taken as a whole, other than the matters described on Schedule II (the "Disclosed Litigation") or (ii) purports to enjoinaffect the legality, restrain, validity or prohibit, or to obtain damages in respect of, or that is related to or arises out ofenforceability of the Acquisition, this Agreement or Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby hereby, and there shall have been no material adverse change in the status, or thereby thatfinancial effect on the Borrower, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement Company or any other Loan Document;of their respective Subsidiaries, of the Disclosed Litigation from that described on Schedule II.
(fj) no Material Adverse Effect The Lender Parties shall have occurred since September 29been given such access to the management, 2002;
(g) records, books of account, contracts and properties of the Borrower, the Company and their respective Subsidiaries as they shall have requested and shall have received such financial business and other information regarding each of the representations foregoing Persons as they shall have reasonably requested.
(k) All governmental and warranties made by Borrower third party consents and approvals necessary in this Agreement connection with the Transaction and the other Loan Documents Facilities shall have been obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect; all applicable waiting periods shall have expired without any adverse action being taken by any competent authority; and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the Transaction or the Facilities.
(l) All of the information provided by or on behalf of the Borrower or by or on behalf of the Company to the Administrative Agent and the Lender Parties prior to their commitment in respect of the Facilities (the "Pre-Commitment Information") shall be true and correct in all respects on material respects; and as no additional information shall have come to the attention of the date made, and Administrative Agent or the Lender Parties that is inconsistent in any material respect with the Pre-Commitment Information or that could reasonably be expected to have a Material Adverse Effect.
(m) The Borrower shall be true and correct in have paid all respects on and as accrued fees of the Effective Date, with the same effect as if made on and as of the Effective Date; each of the covenants, agreements and obligations of Borrower under this Agreement Administrative Agent and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it Lender Parties.
(n) The Administrative Agent shall have received on or before the Effective Date; no Default or Event of Default shall exist and be continuing under Date the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loansfollowing, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
dated such day (h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificateunless otherwise specified), in form and substance satisfactory to the LenderLender Parties (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board of Directors of the Borrower and each other Loan Party approving the Acquisition, this Agreement, the Notes, each other Loan Document and each Related Document to which it is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Acquisition, this Agreement, the Notes, each other Loan Document and each Related Document.
(iii) A copy of the charter of the Borrower and each other Loan Party and each amendment thereto, certified (as of a date reasonably near the Effective Date) by the Secretary of State of the jurisdiction of its incorporation as being a true and correct copy thereof.
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the Effective Date, listing the charter of the Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to the Borrower's or such other Loan Party's charter on file in his office, (B) the Borrower and each other Loan Party have paid all franchise taxes to the date of such certificate and (C) the Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation.
(v) A copy of a certificate of the Secretary of State of each of the State of Ohio and the State of Iowa, dated reasonably near the Effective Date, stating that the Borrower is duly qualified and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the date of such certificate.
(vi) A certificate of the Borrower and each other Loan Party, signed on behalf of the Borrower and such other Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter of the Borrower or such other Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(n)(iii), (B) a true and correct copy of the bylaws of the Borrower and such other Loan Party as in effect on the Effective Date, (C) the due incorporation and good standing of the Borrower and such other Loan Party as a corporation organized under the laws of the State of Delaware, and the absence of any proceeding for the dissolution or liquidation of the Borrower, the Company or such other Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing occurring on the Effective Date, that constitutes a Default.
(vii) A certificate of the Secretary or an Assistant Secretary of the Borrower and each other Loan Party certifying the names and true signatures of the officers of the Borrower and such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder.
(viii) An amended and restated security agreement in substantially the form of Exhibit D (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the President and Chief Executive Officer Borrower and the Chief Financial Officer of the BorrowerCompany, certifying as to the assumptions on which such financial projections are based;together with:
(jA) certificates representing the Borrower shall have delivered Pledged Shares referred to the Lender certificates of insurance therein accompanied by undated stock powers executed in blank and instruments evidencing the policies Pledged Debt referred to therein indorsed in blank,
(B) acknowledgment copies or stamped receipt copies of insurance required proper financing statements, duly filed on or before the Effective Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to be maintained by perfect and protect the Borrower first priority liens and its Subsidiaries security interests created under this Agreement the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed requests for information, dated on or before the Effective Date, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in the other Loan Documentsjurisdictions referred to in clause (B) above that name the Company as debtor, together with additional insured and lender’s loss payable endorsements in favor copies of such other financing statements,
(D) evidence of the Lendercompletion of all other recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,
(E) evidence of the insurance required by the terms of the Security Agreement,
(F) copies of the Assigned Agreements referred to in the Security Agreement, and
(G) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken.
(ix) An amended and restated pledge agreement in substantially the form of Exhibit E (as amended, supplemented or otherwise modified from time to time in accordance with its terms the "Pledge Agreement"), duly executed by Holding, together with
(A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank,
(B) acknowledgment copies or stamped receipt copies of prior financing statements, duly filed on or before the Effective Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interest created under the Pledge Agreement, covering the Collateral, described in the Pledge Agreement,
(C) completed requests for information, dated on or before the Effective Date, listing the financing statements referred to in clause (B) above and all other effective financing statements field in the jurisdictions referred to in clause (B) above that name Holding as debtor, together with copies of such other financing statements, and
(D) evidence that all other action that the Administrative Agent may deem necessary or desirable to perfect and protect the first priority liens and security interests created under the Pledge Agreement has been taken.
(x) A subsidiary guaranty in substantially the form of Exhibit F (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by the Company.
(xi) Certified copies of each of the Related Documents in existence on such date, duly executed by the parties thereto and in form and substance satisfactory to the Lender;Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith, in each case certified by a Responsible Officer.
(kxii) Certificates, in substantially the form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Acquisition and the other transactions contemplated hereby, from its chief financial officer.
(xiii) Evidence of insurance naming the Administrative Agent as insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, business interruption insurance.
(xiv) Certified copies of each employment agreement and other compensation arrangement with each executive officer of any Loan Party or any of its Subsidiaries.
(xv) Certified copies of all Material Contracts of each Loan Party and its Subsidiaries, in each case certified by a Responsible Officer.
(xvi) A Borrowing Base Certificate.
(xvii) A favorable opinion of Xxxxxxxx & Worcester, counsel for the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified Holding, in substantially the form of Exhibit H hereto and as to their respective charter and bylaws and all board such other matter as any Lender Party through the Administrative Agent may reasonably request.
(xviii) A favorable opinion of directors resolutions relating Dickinson, Mackaman, Tyler & Xxxxx, P.C., local counsel to the authorization Loan Parties in the State of Iowa, in substantially the Loan Documents form of Exhibit I hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably requests;request.
(lxix) A favorable opinion of Shearman & Sterling, counsel for the Lender shall have received a Solvency CertificateAdministrative Agent, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by LenderAdministrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Central Tractor Farm & Country Inc)
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including This Agreement shall become effective upon the effectiveness of the obligations of Lender to make the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein, shall be subject to the satisfaction (or waiver by Lender in its sole discretion) of satisfying each of the following conditions precedent (the first date upon precedent, which all such conditions precedent are for the sole and exclusive benefit of the Lenders and may be waived in writing by the Lenders:
8.1.1 no Default or Event of Default shall have been so satisfied (occurred and be continuing nor shall there be any such Default or so waived) Event of Default after giving effect to this Agreement, the Subscription Agreements and the Stream Agreement;
8.1.2 the Obligors shall have performed and complied with all covenants and agreements required by this Agreement to be performed or complied with by them on or prior to the Effective Date;
8.1.3 all representations and warranties of the Obligors applicable as of the Effective Date made in or pursuant to this Agreement shall be referred to as true and correct on the “Effective Date”):;
(a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) 8.1.4 since December 31, 2023, shall have been satisfied (no event, change or waived by Lender effect which, individually or in its sole discretion) on the aggregate, has had, or before the close of business on April 16would reasonably be expected to have, 2003a Material Adverse Effect;
(b) Lender 8.1.5 the Borrower shall have received each delivered, or caused to be delivered to the Administrative Agent, all of the documents set forth on the Schedule of Documents, following (in each case in form and substance satisfactory to Lender, each duly executed by the appropriate parties thereto;Lenders):
(ci) Lender shall have received a non-refundable capital fee in the amount of $900,000, provided that such amount may be withheld by the Lender certificates from the funding duly authorized officers of the additional Term Loans provided for in Section 1.1 above;
(d) Lender shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents the other Obligors certifying (i) the articles and approvals notice of all Personsarticles (or equivalent) of such Person, including all requisite Governmental Authoritiesas applicable, to (ii) the incumbency of signing officers of such Person, and (iii) the corporate resolutions (or equivalent) of such Person, as applicable, approving the execution, delivery and performance of such Person’s obligations under this Agreement and the other Loan Documents;
(e) no action, proceeding, investigation, regulation, or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Documenthereunder;
(fii) no a copy of all Material Adverse Effect shall Project Authorizations and Material Contracts that have occurred since September 29, 2002;
(g) each of the representations and warranties made been entered into by Borrower in this Agreement and the other Loan Documents shall be true and correct in all respects on and as of the date made, and shall be true and correct in all respects on and as of the Effective Date, with the same effect as if made on and as applicable;
(iii) a copy of the Effective Date; each of the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to Anti-Corruption Policy;
(iv) a customary legal opinion dated the Effective Date has been performed or satisfied by it on or before addressed to the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer Administrative Agent and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ CertificateLenders, in form and substance satisfactory to the LenderAdministrative Agent and Lxxxxxx’ counsel, acting reasonably, from counsel to the Borrower and the other Obligors with respect to this Agreement;
(v) an opinion with respect to title to the mining claims and leases addressed to the Lenders in respect of the Project Properties;
(vi) the Subscription Agreement and the Stream Agreement and any other documents required thereby to be executed or delivered on or before the Effective Date, duly executed and delivered by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower, certifying as to the assumptions on which such financial projections are based;each party thereto; and
(jvii) such other documentation as the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor of the Lender, all Administrative Agent may reasonably request in form and substance satisfactory to the LenderLenders, acting reasonably (including, without limitation, all documents and other information required by each Lender to comply with its “know your customer” and other checks);
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until 8.1.6 each of the conditions Lenders shall have concluded its technical, legal, and financial due diligence;
8.1.7 no preliminary or permanent injunction or other order issued by a Governmental Body, and no statute, rule, regulation or executive order promulgated or enacted by a Governmental Body, which restrains, enjoins, prohibits or otherwise makes illegal the consummation of this Section 2.1 has been complied with the transactions contemplated by the Key Transaction Agreements shall be in effect;
8.1.8 no action or proceeding, at law or in equity, shall be pending or threatened by any Person or Governmental Body to Lender’s satisfaction restrain, enjoin or specifically waived in writing prohibit the consummation of the transactions contemplated by Lender.the Key Transaction Agreements or the development of the Project;
Appears in 1 contract
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness of the obligations of Lender to make the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein, Effective Date shall be subject to occur upon the satisfaction (or waiver by Lender in its sole discretion) of each of the following conditions precedent (the first date upon which all such conditions precedent have been so satisfied (or so waived) shall be referred to as the “Effective Date”):precedent:
(a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) Since May 31, 2005 there shall not have been satisfied (or waived by Lender in its sole discretion) on or before the close of business on April 16, 2003;occurred and be continuing any Material Adverse Effect.
(b) Lender All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have received each been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the documents set forth on Lenders that restrains, prevents or imposes materially adverse conditions upon the Schedule of Documents, in form and substance satisfactory to Lender, each duly executed by the appropriate parties thereto;transactions contemplated hereby.
(c) Lender The Borrower shall have received a nonpaid all reasonable invoiced fees and out-refundable capital fee in the amount of $900,000, provided that such amount may be withheld by the Lender from the funding of-pocket expenses of the additional Term Loans provided for in Section 1.1 above;Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Effective Date.
(d) Lender shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents and approvals of all PersonsOn the Effective Date, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents;
(e) no action, proceeding, investigation, regulation, or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
(f) no Material Adverse Effect shall have occurred since September 29, 2002;
(g) each of the representations and warranties made by Borrower in this Agreement and the other Loan Documents following statements shall be true and correct in all respects the Agent shall have received on and as behalf of the date madeLenders a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and shall be warranties contained in Section 5.01 are true and correct in all respects on and as of the Effective Date, with and
(ii) No event has occurred and is continuing that constitutes a Default.
(e) The Agent shall have received satisfactory evidence that the same effect as if made on $3,000,000,000 364-Day Revolving Credit Facility, dated March 18, 2005 shall have been terminated and as of the Effective Date; each of the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has all amounts thereunder shall have been performed or satisfied by it paid in full.
(f) The Agent shall have received on or before the Effective Date the following, each dated the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed Agent:
(i) A Note to the order of each Lender (if any) that has requested one pursuant to Section 2.19.
(ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by the President and Chief Executive Officer this Agreement and the Chief Financial Officer execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, certifying as and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the assumptions on which this Agreement and such financial projections are based;Notes.
(jiii) A certificate of the Secretary or an Assistant Secretary of the Borrower shall have delivered certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Lender certificates of insurance evidencing the policies of insurance required Notes, if any, to be maintained delivered by the Borrower and its Subsidiaries under this Agreement and the other Loan Documentsdocuments to be delivered hereunder.
(iv) A favorable opinion of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Dxxxx Xxxx & Wxxxxxxx, together counsel for the Borrower, in the form of Exhibit D-2.
(v) A certificate of an Authorized Representative dated the Effective Date demonstrating compliance with additional insured and lender’s loss payable endorsements the financial covenants contained in favor Section 6.02 as of the Lender, all in form and substance satisfactory end of the fiscal quarter most recently ended prior to the Lender;
(k) the Borrower and Overhill Ventures shall each Effective Date for which financial statements have been delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization Lenders pursuant to Section 6.01(g); provided that such certificate shall also incorporate capitalization as of the Loan Documents and such other matters November 30, 2005, as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory adjusted after giving effect to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by LenderBond Issuance.
Appears in 1 contract
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including following are conditions precedent to the effectiveness Effective Date of the obligations of Lender to make the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein, shall be subject to the satisfaction (or waiver by Lender in its sole discretion) of each of the following conditions precedent (the first date upon which all such conditions precedent have been so satisfied (or so waived) shall be referred to as the “Effective Date”):Plan:
(a) All of the conditions precedent set forth Confirmation Order, in this Section 2.1 (other than this clause (a)) shall have been satisfied (or waived by Lender form and substance reasonably acceptable to the Debtors and the Plan Sponsor, having become a Final Order and remaining in its sole discretion) on or before the close of business on April 16, 2003full force and effect;
(b) Lender shall have received each all actions, agreements and documents, including the Plan Documents and the Plan Supplement, in form and substance consistent with, and in form and substance as required by the approvals and consents set forth in, the RSA, being filed with the Bankruptcy Court, executed and delivered, and any conditions (other than the occurrence of the documents Effective Date or certification by the Debtors that the Effective Date has occurred) contained therein having been satisfied or waived in accordance therewith;
(c) a chapter 11 trustee, a responsible officer, or an examiner with enlarged powers relating to the operation of the businesses of the Debtors (powers beyond those set forth on in section 1106(a)(3) and (4) of the Schedule Bankruptcy Code) not having been appointed in any of the Chapter 11 Cases;
(d) the Amended Constituent Documents, in form and substance satisfactory attached as Exhibits to Lenderthe Plan Supplement, each duly executed by the appropriate parties thereto;
(c) Lender shall have received a non-refundable capital fee in been filed with the amount of $900,000, provided that such amount may be withheld by the Lender from the funding applicable authorities of the additional Term Loans provided for in Section 1.1 above;
(d) Lender relevant jurisdictions of incorporation or formation and shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documentsbecome effective in accordance with such jurisdictions’ corporation or limited partnership laws;
(e) no actionthe issuance of the New HIT Common Equity Interests, proceedingthe New HITOP Interests, investigationand the CVRs, regulation, or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or and the consummation of the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan DocumentExit Facility;
(f) no Material Adverse Effect shall have occurred since September 29, 2002the RSA remaining in full force and effect and not having been terminated;
(g) each the payment of Restructuring Expenses incurred during the representations and warranties made by Borrower in this Agreement and the other Loan Documents shall be true and correct in all respects on and as of the date made, and shall be true and correct in all respects on and as of the Effective Date, with the same effect as if made on and as of the Effective Date; each of the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or period prior to the Effective Date has been performed or satisfied by it on or before to the Effective Date; no Default or Event of Default shall exist and be continuing under extent invoiced to the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing LoansDebtors, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to except as otherwise provided in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures3.3 hereof with respect to Professional Fee Claims;
(h) Lender shall have received all other reportsactions, documents, certificates, statementsand agreements necessary to implement this Plan having been effected or executed and delivered to the required parties and, or opinions as Lender may reasonably requestto the extent required, filed with the applicable Governmental Units in accordance with applicable laws obtaining;
(i) all governmental and third-party approvals and consents, including Bankruptcy Court approval, as necessary in connection with the Borrower shall have delivered transactions provided for in this Plan, these approvals not being subject to the Lenderunfulfilled conditions, being in full force and effect, and the Lender shall have approvedall applicable waiting periods having expired without any action having been taken by any competent authority that would restrain, the Projections. The Projections shall be accompanied by an Officers’ Certificateprevent, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower, certifying as to the assumptions or otherwise impose materially adverse conditions on which such financial projections are based;transactions; and,
(j) the Borrower shall have delivered payment and satisfaction in full of all statutory fees and obligations then due and payable to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor office of the Lender, all in form and substance satisfactory to the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by LenderU.S. Trustee.
Appears in 1 contract
Samples: Restructuring Support Agreement (Hospitality Investors Trust, Inc.)
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including This Agreement shall not become effective until the effectiveness of the obligations of Lender to make the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein, shall be subject to the satisfaction (or waiver by Lender in its sole discretion) of date on which each of the following conditions precedent (is satisfied or waived in writing by Agent and the first date upon which all such conditions precedent have been so satisfied (or so waived) shall be referred to as the “Effective Date”):Lenders:
(a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) This Agreement shall be executed by each Obligor party hereto, Agent and Lenders, and counterparts hereof as so executed shall have been satisfied (or waived by Lender in its sole discretion) on or before the close of business on April 16, 2003delivered to Agent;
(b) Lender The Pledge Agreement, amendments to each of the Copyright Security Agreement, Patent Security Agreement, Trademark Security Agreement, and Deposit Account Control Agreements, in each case, shall be executed by each applicable Obligor and Agent, and counterparts thereof as so executed shall have been delivered to Agent;
(c) Agent shall have entered into an Intercreditor Agreement with Borrowers and Term Loan Agent in form and substance reasonably satisfactory to Agent;
(d) Agent shall have received each of the documents set forth on the Schedule of Documentscertificates, in form and substance reasonably satisfactory to Lenderit, each duly executed by the appropriate parties thereto;
(c) Lender shall have received from a non-refundable capital fee in the amount knowledgeable Senior Officer of $900,000Obligors certifying that, provided that such amount may be withheld by the Lender from the funding of the additional Term Loans provided for in Section 1.1 above;
(d) Lender shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents and approvals of all Persons, including all requisite Governmental Authorities, after giving effect to the executioninitial Loans and transactions hereunder occurring on the Effective Date, delivery and performance of this Agreement and (i) the other Loan Documents;
Obligors (etaken as a whole) are Solvent; (ii) no action, proceeding, investigation, regulation, Default or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation Event of the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
Default exists; and (fiii) no Material Adverse Effect shall have occurred since September 29, 2002;
(g) each of the representations and warranties set forth in Section 9 are true and correct in all material respects as of the Effective Date, except to the extent such representations and warranties are made on and as of a specified date (and not required to be brought down to the Effective Date), in which case the same shall continue on the Effective Date to be true and correct as of the applicable specified date (or, in the event such representations and warranties are qualified by Borrower in this Agreement and the other Loan Documents materiality or material adverse effect or language of similar import, such representations shall be true and correct in all respects on and as of the date made, and shall be true and correct in all respects on and as of the Effective Date);
(e) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’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 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) that the same charter documents of each Obligor have not been amended or modified since the Second Restatement Effective Date, or if any such charter documents have been so amended or modified, Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization;
(f) Agent shall have received good standing certificates, as applicable, for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification;
(g) Agent shall have received final executed copies of the Term Loan Documents, and all related agreements, documents and instruments as in effect as if made on the Effective Date all of which shall be reasonably satisfactory in form and as substance to Agent and the transactions contemplated by such documentation shall be consummated prior or in simultaneously therewith the making of the initial Advance;
(h) Agent shall have received evidence that (substantially contemporaneously with the Effective Date; each ) the Indenture has been discharged in accordance with its terms accordance with the terms of the covenantsIndenture;
(i) Agent shall have received a written opinion of (x) Xxxxxx, agreements Xxxx & Xxxxxxxx LLP, (ii) Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P. and obligations of Borrower under this Agreement and the other Loan Documents (iii) Xxxxxx & Xxxxxx, P.C., all such opinions to be performed or satisfied in form and substance reasonably satisfactory to Agent;
(j) Agent shall have received a completed Perfection Certificate dated the Effective Date and signed by it a Senior Officer of the Company, together with all attachments contemplated thereby; and
(k) Borrowers have paid all reasonable and documented out-of-pocket fees and expenses of Agent and of legal counsel to Agent that have been invoiced on or prior to the Effective Date has been performed or satisfied by it on or before in connection with the Effective Date; no Default or Event of Default shall exist preparation, negotiation, execution and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower, certifying as to the assumptions on which such financial projections are based;
(j) the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor of the Lender, all in form and substance satisfactory to the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms delivery of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by LenderAgreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Commercial Vehicle Group, Inc.)
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness of the obligations of Lender to make the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein, shall be Agreement is subject to the satisfaction (satisfaction, or waiver by Lender in its sole discretion) of each the Lender, of the following conditions precedent (the first date upon which all such conditions precedent have been so satisfied (or so waived) shall be referred to as the “Effective Date”):precedent:
(a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) shall have been satisfied (or waived by Lender in its sole discretion) on or before the close of business on April 16, 2003;
(b) The Lender shall have received each of the documents set forth on the Schedule of Documentsfollowing documents, duly executed, in each case, in form and substance reasonably satisfactory to the Lender:
(i) duly executed counterparts of this Agreement, the Additional Terms Agreement and the Security Agreements, each duly executed by dated as of the appropriate parties theretodate hereof;
(cii) Lender shall have received (A) a non-refundable capital fee in the amount certificate of $900,000each General Partner, provided that such amount may be withheld by the Lender from the funding dated as of the additional Term Loans provided for in Section 1.1 above;
Effective Date and executed by its respective Authorized Representative, which shall (d1) Lender shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents and approvals of all Persons, including all requisite Governmental Authorities, to certify the resolutions authorizing the execution, delivery and performance of this Agreement the Margin Loan Documentation to which each of the Borrowers is a party and the other Loan DocumentsTransactions to be consummated by it on such date and (2) contain appropriate attachments, including its Organization Documents and those of each of the Borrowers (or a certification that there have been no changes thereto since the Original Closing Date), and (B) a certificate of status, compliance, good standing or like certificate with respect to each of the General Partners and each of the Borrowers issued by the appropriate government officials of the jurisdiction of its incorporation, amalgamation or formation, as applicable;
(eiii) a solvency certificate in respect of each Borrower from an Authorized Representative of each General Partner, dated as of the Effective Date;
(iv) favourable opinions of counsel to the Borrowers and the General Partners, addressed to the Lender, in form and substance reasonably satisfactory to the Lender, dated as of the Effective Date;
(v) the results of a recent Lien and judgment search in the jurisdiction of the General Partners’ and each Borrower’s organization, and each such search shall reveal no action, proceeding, investigation, regulationLiens on any of the assets of, or legislation judgments against, the Borrowers except for Permitted Liens;
(vi) proper financing statements for filing under the PPSA or other appropriate filing offices of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Security Agreements; and
(vii) any information or documentation reasonably requested by the Lender pursuant to Section 9.15.
(b) On or prior to the Effective Date; 33,132,606 Common Shares constituting Acceptable Collateral shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body credited to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or the Collateral Accounts; and any other Loan Document or instruments and documentation required by the consummation Custodian to credit the Collateral Accounts, shall have been made available on the Effective Date at the offices of the transactions contemplated hereby or thereby thatCustodian (and to the person designated by the Custodian for delivery to the Custodian for crediting the Collateral Accounts) for inspection by the Custodian, the Calculation Agent and its counsel; such Common Shares shall be free from all Transfer Restrictions and Restrictive Conditions; and the Collateral Requirement shall have been satisfied in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;all material respects.
(fc) no Material Adverse Effect All reasonable and documented out-of-pocket fees or expenses required to be paid under the Margin Loan Documentation on or before the Effective Date, including the Upfront Fee and counsel fees invoiced at least one Business Day prior to such date, shall have occurred since September 29, 2002;been paid on or before such date.
(gd) each Each of the representations and warranties made by Borrower contained in this Agreement the Margin Loan Documentation shall be true and correct in all material respects (unless any such representation or warranty is qualified as to materiality, in which case it shall be true and correct in all respects) on and as of the other Loan Documents Effective Date, except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such date (unless any such representation or warranty is qualified as to materiality, in which case it shall be true and correct in all respects on and as of such date).
(e) Each of the date madeBorrowers shall have delivered to the Lender a certificate from a Responsible Officer of each General Partner in the form set forth in Exhibit B hereto, and shall be true and correct in all respects on and dated as of the Effective Date, with which shall contain representations that the same effect as if made on conditions set forth in Subsections (b), (d), and as (f) of the Effective Date; each of the covenantsthis Section 4.01 have been satisfied.
(f) No Mandatory Prepayment Event shall have occurred that has not been cured or waived, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it on or before the Effective Date; no Default or Default, Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event Adjustment Determination Period shall have occurred and be continuing, or would result from in each case on the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Effective Date.
(g) The Lender shall have received an officers’ certificate to that effect signed by satisfactory legal opinions from Lender’s counsel regarding implications under applicable Canadian Securities Laws and insolvency laws of realization on the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;Collateral Shares.
(h) The Lender and the Custodian shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, information and documents required by the Lender shall have approved, or the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form Custodian to meet its obligations with respect to “know your customer” rules and substance satisfactory to rules under the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower, certifying as to the assumptions on which such financial projections are based;
(j) the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor of the Lender, all in form and substance satisfactory to the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by LenderAnti Corruption Laws.
Appears in 1 contract
Samples: Margin Loan Agreement (Brookfield Asset Management Inc.)
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness obligations of the obligations of Lender Lenders to make Advances and the additional Term Loans obligation of the Issuing Bank to Borrower as provided in Section 1 above and to perform any issue Letters of its other obligations as provided for herein, Credit on the Effective Date shall be subject to the satisfaction (or waiver by Lender in its sole discretion) of each of the following conditions precedent (on or prior to the first date upon which all such conditions precedent have been so satisfied (or so waived) shall be referred to as the “Effective Date”)::
(a) All of The Borrower and its subsidiaries and the conditions precedent set forth transactions contemplated by the Commitment Letter shall be in this Section 2.1 (other than this clause (a)) shall have been satisfied (or waived by Lender compliance, in its sole discretion) on or before the close of business on April 16all material respects, 2003with all applicable foreign and U.S. federal, state and local laws and regulations, including all applicable environmental laws and regulations;
(b) Lender All necessary governmental and material third party consents and approvals necessary in connection with the Loan Documents and the Tender Offer and Refinancing shall have received each been obtained and shall be in effect;
(c) At the Effective Date, there shall have been tendered, and simultaneously with the borrowing of Term Loans, the Borrower shall accept for purchase, at least 51% of the documents set forth on 2001 Senior Notes in the Schedule of Documents, Tender Offer and Refinancing; and consummate the Refinancing in form and substance satisfactory to Lender, each duly executed by the appropriate parties thereto;
(c) Lender shall have received a non-refundable capital fee Arrangers and in the amount of $900,000, provided that such amount may be withheld by the Lender from the funding of the additional Term Loans provided for in Section 1.1 abovecompliance with applicable law and regulatory approvals;
(d) Lender All loans and other aspects of the transactions shall be in full compliance with all banking and other laws and regulations; no law or regulation shall be applicable, or event shall have received satisfactory evidence occurred, that each seeks to impose materially adverse conditions upon the consummation of Borrower and Overhill Ventures have obtained all required Consents and approvals any of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance transactions or the operation of this Agreement and the other businesses of the Loan DocumentsParties;
(e) no actionThe Administrative Agent or Collateral Agent, proceedingas appropriate, investigation, regulation, or legislation shall have been institutedreceived, threatenedeffective on the Effective Date (unless otherwise indicated below), or proposed before any courtin form and substance reasonably satisfactory to it in such capacity, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation a certificate of the transactions contemplated hereby or thereby thatchief financial officer of the Borrower to the effect that both before and immediately after the making of the Tender Offer and Refinancing, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
(fi) no Material Adverse Effect Default shall have occurred since September 29, 2002;
and be continuing and (gii) each of the representations and warranties of the Borrower and its Subsidiaries made by Borrower in this Agreement and the other Loan Documents shall be true are true;
(f) All reasonable fees and correct in all respects on and as expenses of the date madeLead Arrangers, Agents and shall be true Lenders required to have been paid as a condition to the funding of the Credit Facilities (including payment of all fees, expenses and correct in all respects on and as other charges of counsel to the Arrangers invoiced at least five Business Days prior to the Effective Date) shall have been paid in full;
(g) The Credit Facilities shall have received a debt rating from Xxxxx’x and from Standard & Poor’s;
(h) The Borrower shall have paid or caused to be paid, or the Administrative Agent shall have received evidence satisfactory to it in its sole good faith discretion that on the Effective Date the Borrower shall pay, or cause to be paid, (i) all interest and commitment fees that are accrued but unpaid to the Effective Date under the Original Existing Credit Agreement (whether or not then payable under the terms thereof) and (ii) all fees and expenses (if any) payable under Section 8.04 of the Original Existing Credit Agreement;
(i) The Administrative Agent or Collateral Agent, as appropriate, shall have received the following, each effective on the Effective Date (unless otherwise indicated below), in form and substance reasonably satisfactory to it in such capacity and in sufficient copies for each Lender (except for the Notes):
(1) The Term Notes and Revolving Notes to the order of the respective Lenders;
(2) Duly executed counterparts of this Agreement, signed by each of the parties hereto (or, in the case of any Lender as to which an executed counterpart shall not have been received, receipt by the Administrative Agent in form satisfactory to it of telegraphic, telex or other written confirmation from such Lender of execution of a counterpart hereof by such Lender);
(3) Certified copies of the resolutions of the Board of Directors of the Borrower approving each Loan Document to which it is or is to be a party and of the resolutions of the Board of Directors of each Subsidiary Guarantor approving each Loan Document to which it is or is to be a party;
(4) The Administrative Agent shall have received certified copies of the respective certificates of incorporation and bylaws of the Borrower and its corporate Subsidiaries and the respective certificates of limited partnership and agreements of limited partnership for the partnership Subsidiaries and certificates of formation and operating agreement for the limited liability company Subsidiaries;
(5) A certificate of the Secretary or an Assistant Secretary of the Borrower and each Subsidiary Guarantor certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered by it hereunder;
(6) Copies of all authorizations, consents and approvals of, evidence of other actions by, notices to and filings with all governmental authorities and regulatory bodies required for the due execution, delivery and performance by each of the Borrower and the Subsidiary Guarantors of the Loan Documents (other than the Collateral Documents);
(7) Certificates of the chief financial officer of the Borrower and of each Subsidiary Guarantor, in substantially the form of Exhibit H or Exhibit I, as the case may be (each being a “Solvency Certificate”);
(8) Duly executed counterparts of the Guaranty Agreement and Security Agreement, signed by each of the parties thereto; and
(9) A favorable opinion of Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP, counsel for the Borrower and each Subsidiary Guarantor, in substantially the form of Exhibit E;
(j) Evidence reasonably satisfactory to the Collateral Agent that financing statements have been duly filed under the Uniform Commercial Code of all jurisdictions as may be necessary or, in the opinion of the Collateral Agent, desirable or appropriate to perfect the security interests and liens created by the Security Agreement and the Mortgages, as such agreements relate to the Borrower or any Existing Subsidiary Guarantors;
(k) Duly executed and filed Mortgages with respect to each Real Property indicated on Schedule 3.01(k), in each case in form and substance reasonably satisfactory to the Administrative Agent and, with respect to each such Mortgage, the same effect as if made on following;
(i) a policy of title insurance dated the Effective Date (or an irrevocable commitment to issue such policy, with all conditions marked satisfied, dated and as of recertified the Effective Date) insuring the perfection, enforce ability and first priority of the Lien created under such Mortgage as a valid first mortgage Lien on the Real Property described therein in form and substance and in an amount satisfactory to the Collateral Agent (with all premiums, expenses and fees paid or caused to be paid by the Borrower), which policy shall (w) be issued by a title company reasonably satisfactory to the Collateral Agent, (x) include such reinsurance arrangements (with provisions for direct access) as shall be reasonably acceptable to the Collateral Agent, (y) have been supplemented by such endorsements as shall be requested by Collateral Agent (including, without limitation, endorsements or opinion letters on matters relating to usury, contiguity, variable rate, revolving credit, doing business, and so-called comprehensive coverage over covenants and restrictions), or, where such endorsements are not available at commercially reasonable premium costs, opinion letters of special counsel, architects or other professionals, which counsel, architects or other professionals shall be reasonably acceptable to the Collateral Agent and (z) contain only such exceptions to title as shall be reasonably satisfactory to the Collateral Agent;
(ii) with respect to the Real Property encumbered by each Mortgage, an ALTA survey with respect to such Real Property, in form and substance reasonably satisfactory to the Collateral Agent;
(iii) evidence satisfactory to the Collateral Agent that arrangements shall have been made for the recording of each Mortgage and the payment by the Borrower of any mortgage, recording, documentary stamp, privilege or other taxes and recording charges payable with respect to each Mortgage; and
(iv) a completed Federal Emergency Management Agency Standard Flood Hazard Determination relating to the Real Property encumbered thereby;
(l) Certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any property of any Loan Party is located and the state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Security Documents (other than Permitted Collateral Liens or any other Liens acceptable to the Collateral Agent);
(m) Evidence that all other actions necessary or, in the reasonable opinion of the Collateral Agent, desirable or appropriate to ensure the validity, perfection and priority of the security interests and liens, created by, or intended to be created by, and to reflect the fact that the Collateral Agent is the secured party, mortgagee, beneficiary or grantee, under the Security Agreement and Mortgages have been taken;
(n) Evidence of insurance for the business and properties of the Borrower and its Subsidiaries, in form and substance satisfactory to the Administrative Agent and (i) in the case of property and casualty insurance, naming the Collateral Agent as co-insured and loss payee, and (ii) in the case of liability insurance, naming the Collateral Agent, the Administrative Agent and the Lenders as additional insureds, in each case with responsible and reputable insurance companies or associations satisfactory to the Majority Lenders in such amounts and covering such risks as are satisfactory to the Majority Lenders;
(o) A favorable opinion of special FCC counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, and such other opinions as any Lender through the Administrative Agent may reasonably request;
(p) Favorable opinions of local counsel (i) in each jurisdiction where a Real Property covered by a Mortgage is located or if the law of such jurisdiction governs perfection of security interests and liens granted to the Collateral Agent under the Security Documents, (ii) covering the validity, perfection and priority of the security interests or liens granted or intended to be granted to the Collateral Agent in the Collateral granted or intended to be granted to it under the Security Documents, and (iii) such other opinions as any Lender through the Administrative Agent may reasonably request;
(q) A copy of (i) a written notice delivered by the Borrower to the trustee under each of the covenants, agreements and indentures governing the Existing Subordinated Notes that all of the obligations of the Borrower and the Subsidiary Guarantors under this Agreement and the other Loan Documents to be performed or satisfied are “Designated Senior Debt” under each such indenture and (ii) written confirmation by it on or prior to each such trustee of receipt of such notice; and
(r) Such other financial and non-financial information regarding the Effective Date has been performed or satisfied by it on or before the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement Borrower or any of its Subsidiaries and such other Loan Document approvals, opinions or shall result from documents as any Lender through the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender Administrative Agent may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower, certifying as to the assumptions on which such financial projections are based;
(j) the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor of the Lender, all in form and substance satisfactory to the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by Lender.
Appears in 1 contract
Conditions Precedent to Effective Date. The effectiveness obligation of this Agreement, including the effectiveness of the obligations of Lender Banks to -------------------------------------- make the additional Term initial Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein, shall be hereunder is subject to the satisfaction (or waiver by Lender in its sole discretion) of each of condition that on the following conditions precedent (the first date upon which all such conditions precedent Effective Date there shall have been so satisfied (or so waived) shall be referred delivered to as the “Effective Date”):Administrative Agent with counterparts for each Bank:
(a) All of Notes, if any, requested by any Bank pursuant to Section 2.8 prior to the conditions precedent set forth in this Section 2.1 (other than this clause (a)) shall have been satisfied (or waived Effective Date, duly executed and delivered by Lender in its sole discretion) on or before the close of business on April 16, 2003;Borrower.
(b) Lender shall have received each The favorable written opinions, dated the Effective Date, of the documents General Counsel or Assistant General Counsel of Borrower in the form set forth on the Schedule of Documents, out in form and substance satisfactory to Lender, each duly executed by the appropriate parties thereto;Exhibit F.
(c) Lender shall have received a non-refundable capital fee in the amount of $900,000, provided that such amount may be withheld by the Lender from the funding Certificate of the additional Term Loans provided for Secretary or an Assistant Secretary of Borrower dated the Effective Date as to (i) the Certificate of Incorporation and the By- laws of Borrower, (ii) the resolution of the Board of Directors of Borrower or its Executive Committee in Section 1.1 above;connection with this Agreement, and (iii) the incumbency and signatures of the person authorized to execute and deliver this Agreement and any other instrument, document or other agreement required hereunder on the Effective Date.
(d) Lender A certificate, which shall have received satisfactory evidence that each be true and correct, signed by a vice president of Borrower and Overhill Ventures have obtained all required Consents and approvals of all Personsdated the Effective Date certifying: (i) that since June 30, including all requisite Governmental Authorities1999, to the execution, delivery and performance of this Agreement and the other Loan Documents;
(e) no action, proceeding, investigation, regulation, or legislation shall have there has been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
(f) no Material Adverse Effect shall have occurred since September 29, 2002;
Change; (gii) each of that the representations and warranties made by Borrower contained in this Agreement and the other Loan Documents shall be are true and correct in all respects on material respects; (iii) that no event has occurred and as is continuing or would result from the making of a Loan which constitutes or would constitute an Event of Default or an Unmatured Event of Default; and (iv) the date made, and shall be true and correct in all respects on and Debt Ratings as of the Effective Date, with the same effect as if made on and as of the Effective Date; each of the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it on or before the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower, certifying as to the assumptions on which such financial projections are based;
(j) the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor of the Lender, all in form and substance satisfactory to the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by Lender.
Appears in 1 contract
Samples: Revolving Credit Agreement (Hughes Electronics Corp)
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness Article II hereof shall be effective on and as of the obligations of Lender to make date (the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein, shall be subject to the satisfaction (or waiver by Lender in its sole discretion"Effective Date") of on which each of the following conditions precedent (the first date upon which all such conditions precedent shall have been so satisfied (or so duly waived) shall be referred to as the “Effective Date”)::
(a) All The elements of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) shall have been satisfied (or waived by Lender in its sole discretion) Transaction to be effected on or before the close Closing Date as set forth on Schedule 3.01(a) hereto shall have been consummated on terms and conditions reasonably satisfactory to the Lenders and in compliance with applicable law and regulatory approvals, and each of business on April 16the Lenders shall be satisfied in all reasonable respects with the terms and conditions of all material agreements and instruments relating to the Transaction and there shall not have been any material modification, 2003;amendment, supplement or waiver to any material agreement or instrument or instrument relating to the Transaction that could adversely affect the Lenders in any material respect including, without limitation, any modification, amendment, supplement or waiver relating to (A) the amount or type of consideration to be paid in connection with the Transaction and all related tax, legal and accounting matters and (B) the capitalization, structure and equity ownership of the Borrower and its Subsidiaries after giving effect to the Transaction.
(b) The Lender Parties shall have received be satisfied with the corporate or partnership (as applicable) and legal structure and capitalization of each Loan Party and each of its Subsidiaries, including the documents set forth on terms and conditions of the Schedule charter, bylaws and each class of Documents, in form capital stock of each Loan Party and substance satisfactory each such Subsidiary and of each agreement or instrument relating to Lender, each duly executed by the appropriate parties thereto;such structure or capitalization.
(c) The Lender Parties shall have received a non-refundable capital fee be satisfied that all Existing Debt (including, without limitation, Debt in respect of the amount "Term Facilities" under the Existing Credit Agreement, the Indenture and the XXXXX), other than the Surviving Debt, has been (or, with the proceeds of $900,000the Captain D's Financing, provided the COI Financing or the Real Estate Financing, will be) prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all such amount may Surviving Debt shall be withheld by on terms and conditions satisfactory to the Lender from the funding of the additional Term Loans provided for in Section 1.1 above;Parties.
(d) Lender Before giving effect to the transactions contemplated by this Agreement, there shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents and approvals of all Personsoccurred no Material Adverse Change since October 31, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents;1999.
(e) There shall exist no action, proceedingsuit, investigation, regulation, litigation or legislation shall have been instituted, threatened, proceeding affecting any Loan Party or proposed any of its Subsidiaries pending or threatened before any court, Governmental Authoritygovernmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 3.01(d) (the "Disclosed Litigation") or (ii) purports to affect the legality, validity or legislative body to enjoinenforceability of this Agreement, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement any Note or any other Loan Document or the consummation of the transactions contemplated hereby or thereby thatthereby, and there shall have been no adverse change in Lender’s sole judgmentthe status, would make it inadvisable to consummate the transactions contemplated by this Agreement or financial effect on, any Loan Party or any other Loan Document;of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(e).
(f) no Material Adverse Effect The Lender Parties shall have occurred since September 29, 2002;
(g) each completed a due diligence investigation of the representations and warranties made by Borrower in this Agreement and the other Loan Documents shall be true and correct in all respects on and as of the date made, and shall be true and correct in all respects on and as of the Effective Date, with the same effect as if made on and as of the Effective Date; each of the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it on or before the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower, certifying as to the assumptions on which such financial projections are based;
(j) the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement in scope, and the other Loan Documentswith results, together with additional insured and lender’s loss payable endorsements in favor of the Lender, all in form and substance satisfactory to the Lender;
Lender Parties, and nothing shall have come to the attention of the Lender Parties during the course of such due diligence investigation to lead them to believe that (ki) the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect or (ii) any changes or developments have occurred, or any new or additional information has come to their attention regarding the Borrower or any of its Subsidiaries or any aspect of the Transaction that either individually or in the aggregate could reasonably be expected to have a Material Adverse Effect or adversely affect the Lender Parties or the Transaction; without limiting the generality of the foregoing, the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary Subsidiaries as they shall have certified as to their respective charter requested.
(g) The Borrower shall have paid all accrued fees of the Administrative Agent and bylaws the Lender Parties and all board accrued and invoiced expenses of directors resolutions relating the Administrative Agent and the Lender Parties (including the accrued and invoiced fees and expenses of counsel to the authorization of Administrative Agent and local counsel to the Loan Documents and such other matters as Lender reasonably requests;Administrative Agent).
(lh) The Administrative Agent shall be satisfied with (i) all arrangements between the Lender Borrower and its Subsidiaries (other than Captain D's and its Subsidiaries), on the one hand, and Captain D's and its Subsidiaries, on the other hand, and (ii) all Related Documents.
(i) The SPVs shall have received a Solvency Certificate, in form obtained the Real Estate Financing on terms and substance conditions satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by LenderAdministrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Shoneys Inc)
Conditions Precedent to Effective Date. The effectiveness agreement of this Agreement, including the effectiveness of the obligations of each Lender to make the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein, shall be on the Effective Date is subject to the satisfaction (or waiver by Lender in its sole discretion) the Administrative Agent and the Required Lenders, prior to or substantially concurrently with the making of each the Term Loans on the Effective Date, of the following conditions precedent (the first date upon which all such conditions precedent have been so satisfied (or so waived) shall be referred to as the “Effective Date”):precedent:
(a) All The Administrative Agent shall have received the following:
(i) this Agreement, dated as of the conditions precedent set forth in this Section 2.1 Effective Date, duly executed and delivered by each Loan Party and the other parties party hereto.
(other than this clause ii) the Security Agreement dated as of the Effective Date, duly executed and delivered by each of the Loan Parties party thereto.
(a)iii) shall have been satisfied (or waived the Pledge Agreement, dated as of the Effective Date, duly executed and delivered by Lender in its sole discretion) on or before each of the close Loan Parties party thereto, pledging all of business on April 16, 2003;the issued and outstanding Equity Interests of each Subsidiary of each such Loan Party.
(b) Lender The Chapter 11 Cases shall have received each been commenced in the Bankruptcy Court and all of the documents set forth on First Day Orders shall have been entered by the Schedule of Documents, Bankruptcy Court and such orders and all related pleadings shall be in form and substance satisfactory to Lender, each duly executed by the appropriate parties thereto;Required Lenders and consistent with the Approved Budget.
(c) Lender The Interim DIP Financing Order shall have been entered by the Bankruptcy Court within three (3) Business Days of the Petition Date and the Administrative Agent shall have received a non-refundable capital fee true and complete copy of such order, and such order shall be in the amount form of $900,000, provided that such amount Exhibit C hereto (with modifications thereto as may be withheld agreed to in writing by the Lender from the funding Required Lenders in their sole discretion), be in full force and effect and shall not have been reversed, modified, amended, stayed or vacated absent prior written consent of the additional Term Loans provided for in Section 1.1 above;Administrative Agent and the Required Lxxxxxx.
(d) Lender No order shall have been entered appointing a trustee, examiner or receiver (or local law equivalent) with respect to any of the Loan Parties’ or their respective Subsidiaries’ business, properties or assets, and no motion shall be pending seeking any such relief.
(e) The Borrower shall have paid to the Administrative Agent and the Lenders, the fees, costs and expenses then earned, due and payable under the Loan Documents (including, without limitation, the fees, costs and expenses of counsel and the other advisors to the Administrative Agent and the Lenders incurred in connection with the Chapter 11 Cases and the negotiation, preparation, execution and delivery of the Loan Documents).
(f) The Administrative Agent shall have received satisfactory evidence that a certificate of a Responsible Officer of the Borrower, dated the Effective Date, attaching and certifying true and complete copies of (i) documents relating to the organization, existence and good standing of each Loan Party as the Administrative Agent may reasonably request; (ii) specimen signatures evidencing the identity, authority and capacity of each Responsible Officer authorized to act on behalf of a Loan Party in connection with the Loan Documents and the transactions contemplated thereby, and (iii) resolutions of each of Borrower and Overhill Ventures have obtained all required Consents and approvals the Loan Parties, duly adopted by the Board of all Persons, including all requisite Governmental Authorities, to Directors (or equivalent body in the jurisdiction of such Loan Party) of such Loan Party authorizing the execution, delivery and performance of this Agreement and the other Loan Documents;
(e) no action, proceeding, investigation, regulation, or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body Documents to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that which it is related to or arises out of, this Agreement a party or any other Loan Document document delivered in connection herewith on the Effective Date and certifying that such resolutions have not been modified, rescinded or the consummation of the transactions contemplated hereby or thereby that, amended and are in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
(f) no Material Adverse Effect shall have occurred since September 29, 2002full force and effect;
(g) The Administrative Agent, for its benefit and the benefit of each of other Secured Party, shall have been granted a perfected lien on the representations Collateral by the Interim DIP Financing Order on the terms and warranties made by Borrower conditions and, with the requisite priority, set forth herein and in this Agreement and the other Loan Documents. The Collateral Documents and the Interim DIP Financing Order, upon entry thereof and subject to the terms thereof, shall be true effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, legal, valid, enforceable and correct in all respects perfected Liens on and as of security interests in the date madeCollateral. The Loan Parties shall have delivered UCC financing statements, in suitable form for filing, and shall be true have made arrangements for the filing thereof that are acceptable to the Administrative Agent and correct the Required Lenders.
(h) The Administrative Agent shall have received the Approved Budget in all respects on form and substance acceptable to the Required Lenders in their sole discretion, it being understood that the budget attached to the form of Interim DIP Financing Order attached hereto as Exhibit C is an Approved Budget.
(i) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Effective DateBorrower on behalf of the Loan Parties certifying that (x) the conditions in this Section 5.01 have been satisfied and (y) either (i) all authorizations or approvals of any Governmental Authority and approvals or consents of any other Person, required in connection with the same effect as if made on Loan Documents shall have been obtained, or (ii) that no such authorizations, approvals, and as consents are so required.
(j) Since December 31, 2022, there has not occurred any event, occurrence, effect, fact, condition, change or development that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(k) There shall exist no action, suit, investigation, litigation or proceeding pending or (to the knowledge of the Effective Date; each Loan Parties) threatened in any court or before any arbitrator or governmental instrumentality (other than the Chapter 11 Cases and any action, suit, investigation or proceeding arising from the commencement and continuation of the covenants, agreements and obligations of Borrower under this Agreement and Chapter 11 Cases or the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it on or before the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall consequences that would normally result from the amendment commencement and restatement continuation of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred Chapter 11 Cases) that is not stayed and could reasonably be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or expected to result in a Material Adverse Effect; and each .
(l) Upon entry of the conditions precedent set forth Interim DIP Financing Order, all necessary governmental and third party consents and approvals necessary in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower, certifying as to the assumptions on which such financial projections are based;
(j) the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under connection with this Agreement and the other Loan Documents, together with additional insured transactions contemplated hereby shall have been obtained (without the imposition of any materially adverse conditions that are not acceptable to the Required Lenders in their sole discretion) and lender’s loss payable endorsements shall remain in favor effect; and the making of the Lenderloans under this Agreement shall not violate any material applicable requirement of law and shall not be enjoined temporarily, all in form and substance satisfactory to the Lender;preliminarily or permanently.
(km) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender The Administrative Agent shall have received a Solvency Certificate, in form and substance satisfactory at least two (2) Business Days prior to the Lender, duly executed Effective Date all documentation and other information about the Loan Parties as has been reasonably requested in writing at least three (3) days prior to the Effective Date by the President Administrative Agent that it reasonably determines is required by regulatory authorities under applicable “know your customer” and Chief Executive Officer anti-money laundering rules and regulations, including without limitation the PATRIOT Act and the Chief Financial Officer Proceeds of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by LenderCrime Act.
Appears in 1 contract
Samples: Term Loan Credit Agreement (RVL Pharmaceuticals PLC)
Conditions Precedent to Effective Date. The effectiveness of this This Agreement, including and the effectiveness Revolving Loan Commitment of the obligations of Lender to make the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for hereinLenders hereunder, shall be subject become effective at a closing at the offices of Crowell & Moring LLP 1001 Pennsylvania Avenue, N.W., Washingtxx, X.X. 20000 xnly ox xxx xxx (xxx "Xxxxxxxxx Xxxx") xx xxxxx xxx xx xxx xollowing conditions precedent shall have been fulfilled to the satisfaction (or waiver by Lender in its sole discretion) of each of the following conditions precedent (Lenders; provided, however, that in the first date upon which all such conditions precedent event the Effective Date shall have been so satisfied (not occurred on or so waived) prior to June 30, 1998, the Lenders shall be referred to as the “Effective Date”):have no further obligations hereunder:
(ai) All The Agent, on behalf of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) shall have been satisfied (or waived by Lender in its sole discretion) on or before the close of business on April 16Lenders, 2003;
(b) Lender shall have received each of the documents set forth on the Schedule of Documents, in form and substance satisfactory to Lender, each duly executed by the appropriate parties thereto;
(c) Lender shall have received a non-refundable capital fee in the amount of $900,000, provided that such amount may be withheld by the Lender from the funding of Borrower the additional Term Loans provided for in Section 1.1 above;
(d) Lender shall have received satisfactory evidence that each of Borrower following instruments, agreements, certificates and Overhill Ventures have obtained all required Consents and approvals of all Personspayments, including all requisite Governmental Authoritiesas the case may be, to the execution, delivery and performance of this Agreement and the other Loan Documents;
(e) no action, proceeding, investigation, regulation, or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
(f) no Material Adverse Effect shall have occurred since September 29, 2002;
(g) each of the representations and warranties made by Borrower in this Agreement and the other Loan Documents shall be true and correct in all respects on and as of the date made, and shall be true and correct in all respects on and as of the Effective Date, with the same effect as if made on and as of the Effective Date; each of the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it on or before Date:
(A) A Revolving Note, dated the Effective Date; no Default or Event , payable to the order of Default shall exist and be continuing under each of Lender in the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement amount of such Lender's Pro Rata Share of the Existing Revolving Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred Commitment and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed duly executed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill VenturesBorrower;
(hB) Lender shall have received all other reportsA Swing Line Note, certificatesdated the Effective Date, statementspayable to the order of NationsBank, or opinions as Lender may reasonably requestN.A. in the amount of $10,000,000.00 and duly executed by the Borrower;
(iC) The Subsidiary Guarantee, executed in favor of the Agent by each Domestic Subsidiary of the Borrower shall have delivered existing as of the Effective Date;
(D) The Pledge Agreement, executed by CACI N.V. in favor of the Agent, together with stock certificates evidencing the CACI Limited Shares, duly indorsed in blank for transfer or having attached thereto stock transfer powers duly indorsed in blank;
(E) The Notarial Deed, executed by the Borrower in favor of the Agent and acknowledged or executed by CACI N.V.;
(F) An opinion or opinions of counsel to the LenderBorrower, Guarantors and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ CertificatePledgors, in form and substance satisfactory to the LenderLenders;
(G) A certified copy of the resolutions of the Board of Directors of the Borrower, duly executed Guarantors and the Pledgors authorizing the execution and delivery of this Agreement and/or the other Loan Documents to which they are a party;
(H) A copy of the charter documents and by-laws of the Borrower and any Subsidiary thereof, together with all amendments thereto, certified by the President Secretary of the Borrower or such Guarantor as being true, complete and Chief Executive Officer correct and in effect as of the Chief Financial Effective Date;
(I) An incumbency certificate of the Secretary, an Assistant Secretary or an Assistant Treasurer of the Borrower, the Guarantors and CACI N.V. certifying the names and true signatures of each officer of the Borrower, the Guarantors and CACI N.V. authorized to execute the Loan Documents;
(J) By wire transfer of immediately available funds, the Borrower shall have paid to the Agent, on behalf of the Lenders, as applicable, a fee in the amount of (i) in the case of NationsBank, N.A., $25,000.00, (ii) in the case of First Union Commercial Corporation, $18,750.00, (iii) in the case of Mellon Bank, N.A., $16,875.00, and (iv) in the case of Crestar Bank $16,875.00,
(K) A certificate of an Authorized Officer of the Borrower, dated the Effective Date, certifying as to that the assumptions on which such financial projections matters contained in clauses (iii), (iv) and (v) of Section 4.2 hereof are basedtrue and correct;
(jL) the Borrower shall have delivered to the Lender certificates A certificate of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor an Authorized Officer of the LenderBorrower, all in form and substance satisfactory to dated the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency CertificateEffective Date, certifying, in form and substance satisfactory to the LenderLenders, duly executed the Borrower's compliance with Section 6.1(m) hereof, having attached to such certificate a summary in reasonable detail of the Borrower's and its Subsidiaries' insurance coverage. Upon request of the Lenders, the Borrower shall deliver an insurance report of an independent insurance broker as to due compliance with Section 6.1(m) hereof; and
(M) The results of a search, upon the records maintained with the appropriate Secretary of State and county or city recorder offices of all jurisdictions deemed advisable by the President Lenders, regarding liens, if any, on file with such offices and Chief Executive Officer naming the Borrower or any Subsidiary as a debtor, which results shall be satisfactory to the Lenders.
(ii) The Borrower shall have disclosed to the Lenders promptly from time to time any material developments or changes in the Borrower and its Subsidiaries', taken as a whole, business, assets, results of operations, condition (financial or otherwise) or prospects, including without limitation amendments to their charter documents or the Borrower's Form 10-K or 10-Q and the exhibits thereto, and any material amendments, changes or terminations of any material contracts or the award of or loss of any material bid or proposal. Any such material developments, changes or amendments shall not have affected adversely the assumptions contained in the credit analysis of the Borrower performed by the Lenders prior to the execution of this Agreement or resulted in a material adverse change since March 31, 1998 in the business, assets, results of operations, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries, taken as a whole;
(iii) The Borrower shall have delivered to the Lenders a true, correct and complete copy of all loan documents relating to that certain unsecured loan facility made to CACI Limited by the financing institution or institutions named therein in the aggregate amount of up to 500,000 Pound Sterling (the "U.K. Debt"), certified as of the Effective Date by an Authorized Officer of CACI Limited as such and that the U.K. Debt loan documents remain in full force and effect and that no default or event that, with the lapse of time or the giving of notice or both, would constitute an event of default exists thereunder;
(iv) The Borrower shall have delivered to the Lenders (A) the Borrower's Form 10-K for the Fiscal Years ending June 30, 1996 and 1997 and Form 10-Q for the Fiscal Quarters ending September 30, 1997, December 31, 1997 and March 31, 1998, and (B) such other unaudited consolidated financial statements of the Borrower and its Consolidated Subsidiaries as any Lender shall reasonably request, together with, in each case, an officer's certificate, dated the Effective Date, from each of the Borrower's Chief Financial Officer and Treasurer, stating that, to their personal knowledge after having performed such due diligence as would customarily be performed by a corporate officer in their position but no additional due diligence, the Borrower's Form 10-K and Form 10-Qs and unaudited consolidated financial statements, if any, attached thereto as of the Effective Date do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(v) All legal matters incident to this Agreement shall be satisfactory to counsel for the Lenders, and the Borrower shall have reimbursed the Lenders for their fees and expenses and the fees and expenses of the Lenders' counsel in connection with the preparation or review, as the case may be, of the Loan Documents and all matters incident thereto (it being understood that such statement may not reflect the final statement of fees and expenses incurred by the Lenders' counsel in connection with such preparation or review);
(vi) All Schedules delivered hereunder by the Borrower shall be in form and substance satisfactory to the Lenders;
(vii) By wire transfer of immediately available funds, the Agent shall have received the Administrative Fee due and payable to the Agent on the Effective Date pursuant to the Administrative Fee Letter;
(viii) By wire transfer of immediately available funds, NationsBanc Montgomery Securities LLC shall have received the fee due and xxxxxxx xo it on the Effective Date in accordance with the Administrative Fee Letter;
(ix) The Lenders shall have completed their due diligence review of the Borrower and its Subsidiaries, including their business, assets, results of operations, condition (financial or otherwise), prospects, liabilities (both actual and contingent, including environmental liabilities), management and affairs, and the results thereof shall have been satisfactory to the Lenders in their sole discretion;
(x) The Lenders shall have received such other documents, instruments, certificates, opinions, agreements and information as the Lenders or their counsel shall reasonably request in their discretion in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation, current consolidated and consolidating financial statements of the Borrower and its Subsidiaries, a report describing the aggregate amount and current age status of accounts receivable of the Borrower. If any other term , a report describing the current status of any Loan Document should conflict, goods or appear to conflict, services on backlog with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each Subsidiary thereof and a report describing the status of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction pending or specifically waived in writing by Lenderthreatened litigation).
Appears in 1 contract
Samples: Revolving Credit Agreement (Caci International Inc /De/)
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness of Agreement and the obligations of the L/C Issuer and each Lender to make the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for hereinL/C Credit Extensions hereunder, shall be are subject to the satisfaction (or waiver by Lender in its sole discretion) of each of the following conditions precedent (the first date upon which all such conditions precedent have been so satisfied (or so waived) shall be referred to as the “Effective Date”):
(a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) shall have been satisfied (or waived by Lender in its sole discretion) on or before prior to the close of business on April 16, 2003;
Effective Date (b) Lender shall have received each of the documents set forth on the Schedule of Documents, with any document specified below to be in form and substance satisfactory to Lender, each duly the Administrative Agent and the Required Lenders): (a) this Agreement executed and delivered by the parties hereto; (b) a Bank Note executed by the appropriate parties thereto;
UL in favor of each Lender that has requested a Bank Note; (c) Lender shall have received a non-refundable capital fee in the amount of $900,000, provided that such amount may be withheld Guaranty executed and delivered by the Lender from the funding of the additional Term Loans provided for in Section 1.1 above;
Guarantors; (d) Lender shall have received satisfactory evidence that each a written opinion or opinions of Borrower and Overhill Ventures have obtained all required Consents and approvals of all PersonsXxxxxx & Xxxxxxx LLP, including all requisite Governmental Authorities, counsel to the executionLoan Parties, delivery dated the Effective Date and performance of this Agreement addressed to the Administrative Agent and the other Loan Documents;
Lenders; (e) no action, proceeding, investigation, regulation, or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation a certificate signed by a Responsible Officer of the transactions contemplated hereby or thereby Borrower dated the Effective Date and stating that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
: (fi) no Material Adverse Effect shall have occurred since September 29, 2002;
(g) each of the representations and warranties made by Borrower contained in Article Four of this Agreement and the other Loan Documents shall be are true and correct in all material respects on and as of (or, to the date madeextent qualified by materiality or Material Adverse Effect, and shall be true and correct in all respects respects) on and as of the Effective Date, with except to the same effect as if made extent such representations and warranties specifically relate to an earlier 63 13625811v6 date, in which case such representations and warranties shall have been true and correct in all material respects (or, to the extent qualified by materiality or Material Adverse Effect, in all respects) on and as of such earlier date; (ii) since December 31, 2020, there shall have occurred no material adverse change in the Effective Date; each financial condition of the covenantsBorrower and its Subsidiaries taken as a whole, agreements and obligations of Borrower under this Agreement and nor shall there have occurred a change in the other Loan Documents to be performed laws, rules, guidelines or satisfied by it on regulations (or prior the interpretation or administration thereof) applicable to the Effective Date has been performed Loan Parties that materially affects the ability of the Loan Parties to perform their respective obligations hereunder or satisfied by it on or before the Effective Dateunder any Related Document; and (iii) no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have Potential Default has occurred and be is continuing, or would result from the fundingexecution, advance delivery or incurrence performance of this Agreement or any Term Loan, that constitutes or would constitute Related Document to which any Loan Party is a Default or an Event party; (f) a copy of Default or result in a Material Adverse Effect; and each resolutions of the conditions precedent set forth in this Section 2.1 shall have been satisfied Governing Body of each Loan Party and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reportsnecessary corporate approvals, certificatesif any, statementscertified as of the Effective Date by a duly authorized officer of such Loan Party, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lenderauthorizing, and the Lender shall have approvedamong other things, the Projections. The Projections shall be accompanied execution, delivery and performance by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer such Loan Party of the Borrower, certifying as to the assumptions on which such financial projections are based;
(j) the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured Related Documents to which it is a party and lender’s loss payable endorsements in favor which are being executed and delivered as of the LenderEffective Date; (g) true and correct copies of all Governmental Approvals, if any, necessary for the Loan Parties to execute, deliver and perform the Related Documents; (h) evidence that the Loan Parties have received all consents and other approvals from creditors necessary for them to execute, deliver and perform the Related Documents; (i) a certificate of a duly authorized officer of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other Related Documents to which it is or will be a party; (j) evidence that (A) each Loan Party is duly organized and validly existing under the laws of its jurisdiction of incorporation or formation, (B) the Borrower is in form good standing in the States of Delaware and substance satisfactory Illinois and (C) each other Loan Party is in good standing (to the Lender;
extent such concept applies) under the laws of its jurisdiction of incorporation or formation; (k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization copy of the Loan Documents Investment Policy of UL Solutions, certified to be true, correct and such complete by the chief financial officer or other matters as Lender reasonably requests;
appropriate financial officer of the Borrower; (l) evidence that the Lender shall have received a Solvency Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each paid (i) to the Administrative Agent for the account of the conditions Lenders (including Bank of this Section 2.1 has been complied with America), the upfront fees set forth in the Fee Letter and (ii) all other fees and other amounts due to the Administrative Agent and the Lenders on or prior to the Effective Date; (m) all Indebtedness owing under the Existing Credit Agreement shall be repaid in full and the commitments thereunder shall be terminated on or prior to the Effective Date; (n) upon the reasonable request of any Lender prior to the date that is at least ten (10) days prior to the Effective Date and to such Lender’s satisfaction or specifically waived reasonable satisfaction, the documentation and other information so requested in writing by Lender.connection with applicable “know your customer” and anti- money-laundering rules and regulations, including, without limitation, the Patriot Act, and any
Appears in 1 contract
Samples: Credit Agreement (UL Solutions Inc.)
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness Article II hereof shall be effective on and as of the obligations of Lender to make date (the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for herein"Effective Date"), shall be subject to the satisfaction (or waiver by Lender in its sole discretion) of on which each of the following conditions precedent (the first date upon which all such conditions precedent shall have been so satisfied (or so duly waived) shall be referred to as the “Effective Date”)::
(a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) There shall have been satisfied (or waived by Lender in its sole discretion) on or before the close of business on April no adverse change since December 16, 2003;1996 in the corporate and legal structure and capitalization of each A Company, each Designated Operating Company and the Bank, including the terms and conditions of the charter, bylaws and each class of capital stock of each such Person and of each agreement or instrument relating to such structure or capitalization, except as contemplated by existing consents, amendments and waivers delivered in connection with the Existing Term Credit Agreement; the Lenders shall be satisfied with the corporate and legal structure and capitalization of each of Revlon Guarantor, Revlon Worldwide Parent, Revlon Worldwide Holdings, Consolidated Cigar Holdings and PCT, including the terms and conditions of the charter, by-laws and each class of capital stock of each such Person and of each agreement or instrument relating to such structure or capitalization.
(b) Lender Before giving effect to the transactions contemplated by this Agreement and the Revolving Credit Agreement, there shall have received each occurred no Material Adverse Change since December 31, 1995 relating to any of the documents set forth on Loan Parties, the Schedule of Documents, in form FN Parties and substance satisfactory to Lender, each duly executed by the appropriate parties thereto;Designated Operating Companies.
(c) Lender There shall have received a non-refundable capital fee in the amount of $900,000, provided that such amount may be withheld by the Lender from the funding of the additional Term Loans provided for in Section 1.1 above;
(d) Lender shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents;
(e) exist no action, proceedingsuit, investigation, regulationlitigation or proceeding affecting any of the Loan Parties, the FN Parties and the Designated Operating Companies pending or legislation shall have been instituted, threatened, or proposed threatened before any court, Governmental Authoritygovernmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect (in the case of clause (a) of the definition thereof, the term "Person" shall refer to such Loan Party, such FN Party or legislative body such Designated Operating Company, as the case may be) or (ii) purports to enjoinaffect the legality, restrainvalidity or enforceability of this Agreement, or prohibitthe Revolving Credit Agreement, or to obtain damages in respect ofany Note, or that is related to or arises out of, this Agreement or any other Loan Document, any Related Document, any FN Document or the consummation of the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;and thereby.
(fd) no Material Adverse Effect Nothing shall have occurred since September 29, 2002;
(g) each come to the attention of the representations and warranties made by Borrower Lenders in this Agreement and the other Loan Documents shall be true and correct in all respects on and as respect of any of the date madeA Companies, and shall be true and correct the Designated Operating Companies or the Bank that is inconsistent with or different from in all respects on and as any adverse respect any of the Effective Date, results of the due diligence investigations of such Persons conducted in connection with the same effect as if made on and as of Original Credit Agreement, the Effective Date; each of Second Credit Agreement, the covenantsThird Credit Agreement, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it on or before the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Fourth Credit Agreement or the Existing LoansTerm Credit Agreement; the Lenders shall be satisfied with the results of their due diligence investigation of Revlon Guarantor, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred Revlon Worldwide Parent, Revlon Worldwide Holdings, Consolidated Cigar Holdings and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse EffectPCT; and each of the conditions precedent set forth in this Section 2.1 Lenders shall have been satisfied given such access to the management, records, books of account, contracts and fulfilled; and Lender properties of each A Company, each Designated Operating Company, Consolidated Cigar Holdings, PCT or the Bank as they shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower, certifying as to the assumptions on which such financial projections are based;
(j) the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor of the Lender, all in form and substance satisfactory to the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by Lenderrequested.
Appears in 1 contract
Samples: Revolving Credit Agreement (Andrews Group Inc /De/)
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including Conditions precedent to the effectiveness consummation of the obligations Plan, each of Lender to make which may be waived in writing by the additional Term Loans to Borrower as provided in Section 1 above and to perform any of its other obligations as provided for hereinConsenting Lenders, shall include, but not be limited to, the following: (a) a Confirmation Order in form and substance reasonably satisfactory to the Consenting Lenders and the Debtors shall have been entered by the Bankruptcy Court and shall have become a final order, not reversed, modified, vacated, subject to a stay or pending an appeal; (b) the satisfaction Debtors and other parties thereto shall have executed and delivered appropriate definitive documentation regarding the Restructuring, including, without limitation, (or waiver by Lender in its sole discretioni) of the Revolving Credit Facility and all documents ancillary thereto; (ii) each of the following conditions precedent Term Facilities and all documents ancillary thereto; (iii) an intercreditor agreement; (iv) the first date upon New Stockholders’ Agreement; (v) a warrant agreement stating the terms of the Warrants; (vi) the amended and restated certificate of incorporation and by-laws of the Reorganized Debtors (which documents shall contain provisions requiring no more than majority approval to amend such documents); and (vii) the Registration Rights Agreement, each in form and substance reasonably satisfactory to the Debtors and the Consenting Lenders; (c) all such conditions precedent material governmental, regulatory and third party approvals, waivers and/or consents in connection with the Restructuring (including any required approvals or waivers by the FCC), if any, shall have been so satisfied obtained and shall remain in full force and effect, and there shall exist no third party claim, action, suit, investigation, litigation, request for reconsideration or proceeding pending in any court or before any arbitrator or governmental instrumentality, which would prohibit the transactions contemplated by the Restructuring; (or so waivedd) There shall not have been any material adverse change (as measured against the information provided to the Agent and/or its advisors prior to the Petition Date) in the status of any claims against the Debtors on account of (i) pension funding liability, (ii) tax liability and (iii) environmental liability; provided that, with respect to (i) and (ii), there shall not be a material adverse change if the Consenting Lenders and the Debtors are able to negotiate a mutually satisfactory response to such change, subject to any requirements of the Bankruptcy Code, within 15 business days of its discovery. (e) the Debtors shall have cash on hand as of the Effective Date of at least $15 million; (f) the Revolving Credit Facility (i) shall have closed on terms and conditions reasonably acceptable to the Consenting Lenders and the Debtors; (ii) shall be referred to as in full force and effect, and (iii) the “extension of credit thereunder shall be available upon (and subject to) the Effective Date”):
; (ag) All of the all other conditions precedent relating to the Revolving Credit Facility and the Term Facilities, as set forth in this Section 2.1 (other than this clause (a)) Annex C hereto, shall have been satisfied (or waived by Lender in its sole discretion) on or before the close of business on April 16waived, 2003;
(b) Lender shall have received each of the documents set forth on the Schedule of Documents, in form and substance satisfactory to Lender, each duly executed by the appropriate parties thereto;
(c) Lender shall have received a non-refundable capital fee in the amount of $900,000, provided that such amount may be withheld by the Lender from the funding of the additional Term Loans provided for in Section 1.1 above;
(d) Lender shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents;
(e) no action, proceeding, investigation, regulation, or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
(f) no Material Adverse Effect shall have occurred since September 29, 2002;
(g) each of the representations and warranties made by Borrower in this Agreement and the other Loan Documents shall be true and correct in all respects on and as of the date made, and shall be true and correct in all respects on and as of the Effective Date, with the same effect as if made on and as of the Effective Dateapplicable; each of the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it on or before the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered Other conditions to the Lender, confirmation and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower, certifying as to the assumptions on which such financial projections are based;
(j) the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor of the Lender, all in form and substance satisfactory to the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a effectiveness customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms for transactions of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by Lendertype.
Appears in 1 contract
Samples: Plan Support Agreement
Conditions Precedent to Effective Date. The effectiveness of this Agreement, including the effectiveness closing of the obligations transactions contemplated by this Assignment (the "CLOSING DATE") shall occur at the offices of Lender Xxxxxx Xxxxxx & Xxxxxxx, or such other location as the parties hereto may mutually agree. Unless this Assignment is earlier terminated pursuant to make Sections 1 or 7, the additional Term Loans to Borrower Closing Date shall occur as provided in Section 1 above and to perform any of its other obligations promptly as provided for hereinpracticable, shall be subject to but no later than five (5) business days following the satisfaction (or waiver by Lender in its sole discretion) of each Assignee and Assignor of the following conditions precedent (conditions:
a. Ourway Realty and the manager and each member thereof shall have waived their respective rights of first date upon which all such conditions precedent have been so satisfied (or so waived) shall be referred refusal under the Operating Agreement with respect to as the “Effective Date”):
(a) All transfer of the conditions precedent set forth in Interest pursuant to this Section 2.1 (other than this clause (a)) shall have been satisfied (or waived by Lender in its sole discretion) on or before the close of business on April 16, 2003;Agreement.
(b) Lender shall have received each of the documents set forth on the Schedule of Documents, in form and substance satisfactory to Lender, each duly executed by the appropriate parties thereto;
(c) Lender b. Assignee shall have received a non-refundable capital fee copy of the Operating Agreement, executed by the manager of Ourway Realty and all Other Members, and amended in conformity with the requirements of the Operating Agreement to indicate that all of Assignor's right, title and interest in the amount of $900,000, provided that such amount may be withheld by the Lender from the funding of the additional Term Loans provided for in Section 1.1 above;Interest has been transferred and conveyed to Assignee.
(d) Lender c. Assignee shall have received satisfactory evidence any instrument of transfer, other than this Assignment, that each may be required by the Operating Agreement or by law.
d. The representations and warranties of Borrower Assignor set forth in Section 4 of this Assignment shall be true and Overhill Ventures correct in all material respects (if not qualified by materiality) and in all respects (if qualified by materiality) (i) as of the date hereof and (ii) as of the Effective Date as if made on such date (provided that in the cases of clauses (i) and (ii), any such representation and warranty made as of a specific date shall be true and correct in all material respects (if not qualified by materiality) and in all respects (if qualified by materiality) on and as of such specific date).
e. Assignor shall have performed in all material respects all covenants and obligations herein required to be performed or observed by it on or prior to the Closing Date.
f. On or prior to the Closing Date, Assignee shall have obtained any and all required Consents consents, approvals, authorizations, permits, licenses and approvals waivers necessary for consummation of the transactions contemplated by this Assignment and all Persons, including all requisite Governmental Authorities, of the Agreements.
g. No order to the execution, delivery and performance of this Agreement and the other Loan Documents;
(e) no action, proceeding, investigation, regulation, or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, enjoin or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or otherwise prevent the consummation of the transactions contemplated hereby shall have been entered by any court or thereby that, in Lender’s sole judgment, would make it inadvisable Governmental Body and not rescinded or overturned. No litigation instituted by any Governmental Body shall be pending to consummate restrain or invalidate any material part of the transactions contemplated by this Agreement or any other Loan Document;
(f) no Material Adverse Effect shall have occurred since September 29, 2002;
(g) each of the representations and warranties made by Borrower in this Agreement and the other Loan Documents shall be true and correct in all respects on and as of the date made, and shall be true and correct in all respects on and as of the Effective Date, with the same effect as if made on and as of the Effective Date; each of the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it on or before the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower, certifying as to the assumptions on which such financial projections are based;
(j) the Borrower shall have delivered to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, together with additional insured and lender’s loss payable endorsements in favor of the Lender, all in form and substance satisfactory to the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 has been complied with to Lender’s satisfaction or specifically waived in writing by LenderAssignment.
Appears in 1 contract
Conditions Precedent to Effective Date. The effectiveness obligation of this Agreement, including the effectiveness of the obligations of Lender each Bank to make the additional Term Loans to Borrower as provided in Section 1 above and to perform any its initial Extension of its other obligations as provided for herein, shall be Credit hereunder is subject to the satisfaction (or waiver by Lender in its sole discretion) of each of the following conditions precedent (the first date upon which condition that all such conditions precedent have been so satisfied (or so waived) shall be referred to as the “Effective Date”):
(a) All of the conditions precedent set forth in this Section 2.1 (other than this clause (a)) shall 4.1 have been satisfied (or waived by Lender in its sole discretion) on or before the close of business on April 16Administrative Agent, 2003;
(b) Lender and the Administrative Agent shall have received each of the documents set forth on the Schedule of Documents, in form and substance satisfactory to Lender, each duly executed by the appropriate parties thereto;
(c) Lender shall have received a non-refundable capital fee in the amount of $900,000, provided that such amount may be withheld by the Lender from the funding of the additional Term Loans provided for in Section 1.1 above;
(d) Lender shall have received satisfactory evidence that each of Borrower and Overhill Ventures have obtained all required Consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents;
(e) no action, proceeding, investigation, regulation, or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby that, in Lender’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
(f) no Material Adverse Effect shall have occurred since September 29, 2002;
(g) each of the representations and warranties made by Borrower in this Agreement and the other Loan Documents shall be true and correct in all respects on and as of the date made, and shall be true and correct in all respects on and as of the Effective Date, with the same effect as if made on and as of the Effective Date; each of the covenants, agreements and obligations of Borrower under this Agreement and the other Loan Documents to be performed or satisfied by it on or prior to the Effective Date has been performed or satisfied by it on or before the Effective Date; no Default or Event of Default shall exist and be continuing under the Existing Loan Agreement or any other Loan Document or shall result from the amendment and restatement Date all of the Existing Loan Agreement or the Existing Loans, the making of the Term Loans or the consummation of the other transactions contemplated thereby; no event shall have occurred and be continuing, or would result from the funding, advance or incurrence of any Term Loan, that constitutes or would constitute a Default or an Event of Default or result in a Material Adverse Effect; and each of the conditions precedent set forth in this Section 2.1 shall have been satisfied and fulfilled; and Lender shall have received an officers’ certificate to that effect signed by the President and Chief Executive Officer and the Chief Financial Officer, which shall also include certifications in form and substance satisfactory to Lender, affirming that no Consents referred to in Section 2.1(d) are required other than those obtained by Borrower and Overhill Ventures;
(h) Lender shall have received all other reports, certificates, statements, or opinions as Lender may reasonably request;
(i) the Borrower shall have delivered to the Lender, and the Lender shall have approved, the Projections. The Projections shall be accompanied by an Officers’ Certificatefollowing, in form and substance satisfactory to the LenderAdministrative Agent:
(a) Completion of Bellcore Acquisition.
(i) Evidence that the Bellcore Acquisition is being, duly executed or concurrently herewith is being, completed on the Effective Date substantially in accordance with the Bellcore Purchase Agreement, which, except as set forth in Schedule 4.2(a)(i), is in substantially the form of such documents previously provided to the Administrative Agent, and, except as set forth in Schedule 4.2(a)(i), the Bellcore Acquisition is being completed substantially in accordance with the terms of the Bellcore Purchase Agreement without any material waiver or amendment not consented to by the President Banks; provided that changes to schedules 4.3(a), 4.3(c), 4.7, 4.8, 4.9(a) and Chief Executive Officer 4.10 to the Bellcore Purchase Agreement shall not be deemed material for purposes of this subsection. The Bellcore Purchase Agreement is in full force and effect and, to Borrower's knowledge, no party is in default thereunder. All necessary or required material approvals, consents, exemptions, authorizations, and other actions by, or notices to, or filings with, all Governmental Authorities in connection with the Chief Financial Officer completion of the Borrower, certifying as to the assumptions on which such financial projections are basedBellcore Acquisition have been obtained;
(jii) after giving effect to the Bellcore Acquisition: (A) the Borrower shall have delivered representations and warranties contained in Section 5 are true and correct in all material respects, (B) no Default or Event of Default has occurred and is continuing or would result therefrom, and (C) there has occurred since January 31, 1997, no event or circumstance that could reasonably be expected to result in a Material Adverse Effect; 52 (iii) before and after giving effect to the Lender certificates of insurance evidencing the policies of insurance required to be maintained by the Borrower and its Subsidiaries under this Agreement and the other Loan DocumentsBellcore Acquisition, together with additional insured and lender’s loss payable endorsements in favor of the Lender, all in form and substance satisfactory to the Lender;
(k) the Borrower and Overhill Ventures shall each have delivered a customary Secretary’s certificate wherein its respective Secretary shall have certified as to their respective charter and bylaws and all board of directors resolutions relating to the authorization of the Loan Documents and such other matters as Lender reasonably requests;
(l) the Lender shall have received a Solvency Certificate, in form and substance satisfactory to the Lender, duly executed by the President and Chief Executive Officer and the Chief Financial Officer of the Borrower. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, and Borrower shall have no rights under this Agreement or any other Loan Document until each of the conditions of this Section 2.1 Bellcore Material Adverse Effect has been complied with to Lender’s satisfaction or specifically waived in writing by Lender.occurred; and
Appears in 1 contract
Samples: Credit Agreement (Science Applications International Corp)
