Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks: (a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date. (b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each Bank: (i) The Notes duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.19. (ii) The Guarantee duly executed by each Subsidiary Guarantor. (iii) Certified copies of the resolutions of the Governing Body of each Loan Party approving each Loan Document to which it is a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document. (iv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization. (v) A certificate of each Loan Party signed on behalf of such Loan Party by 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 or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)
Appears in 3 contracts
Samples: Revolving Credit Agreement (Kbr, Inc.), Revolving Credit Agreement (Kbr, Inc.), Revolving Credit Agreement (Kbr, Inc.)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the first date (Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all obligation of the Banks and Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction of the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banksprecedent:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such dayday (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each BankInitial Lender:
(i) The Notes duly executed by the Borrower payable to the order of the Banks Non-rollup Revolving Credit Lenders to the extent requested by any Bank pursuant to in accordance with Section 2.192.16(a).
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body boards of directors of each Loan Party of the Borrower and each Guarantor approving each Loan Document to which it is a party, the execution and delivery of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Documentthis Agreement.
(iviii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a certificate of date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation documentorganization, as the case may be, of such Loan Party thereof as being a true and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationcorrect copy thereof.
(viv) A certificate of each Loan Party of the Borrower and each Guarantor signed on behalf of the Borrower and such Loan Party Guarantor, respectively, 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 accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any amendments to the charter or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), changes thereto; (B) a true the accuracy and correct copy completeness of the bylaws, limited liability company agreement bylaws (or partnership agreement, as equivalent organizational document) of the case may be, of Borrower or such Loan Party Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(b3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto.
Appears in 3 contracts
Samples: Senior Secured Debtor in Possession Credit Agreement (Chemtura CORP), Senior Secured Debtor in Possession Credit Agreement (Chemtura CORP), Senior Secured Debtor in Possession Credit Agreement
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts The effectiveness of this Agreement duly executed by the Borrower and all of the Banks and the following additional obligation of each Lender to make Loans hereunder and the obligation of each Issuer to issue the Letters of Credit hereunder pursuant to the terms and conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by are subject to the conditions precedent that the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date furnishes the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each BankAgent, on the Closing Date, with sufficient copies for the Lenders:
(i) The Notes duly executed Copies of the articles of incorporation of the Borrower, together with all amendments, and a certificate of good standing for the Borrower, certified by the Borrower to the order appropriate governmental officer in its jurisdiction of the Banks to the extent requested by any Bank pursuant to Section 2.19incorporation.
(ii) The Guarantee duly executed Copies, certified by each Subsidiary Guarantorthe Secretary or Assistant Secretary of the Borrower of its by-laws and of its Board of Directors' resolutions authorizing the execution of the Loan Documents.
(iii) Certified copies An incumbency certificate, executed by the Secretary or Assistant Secretary of the resolutions Borrower, which shall identify by name and title and bear the signature of the Governing Body officers of each the Borrower authorized to sign the Loan Party approving each Loan Document Documents and to make borrowings and obtain Letters of Credit hereunder, upon which it is a party, certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Documentany change in writing by the Borrower.
(iv) A copy written opinion of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy the General Counsel or Corporate Counsel of the charter or other formation documentBorrower substantially in the form of Exhibit "B-1", as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are Xxxxxx & Xxxxxx, L.L.P., counsel to the only amendments to such Loan Party’s charter on file Borrower, substantially in such Secretary’s office, the form of Exhibit "B-2" and (2C) such Loan Party is duly organized and Xxxxx, Xxxxx & Xxxxx, special counsel to the Administrative Agent, substantially in good standing or presently subsisting under the laws form of Exhibit "I" hereto, each dated as of the State of Closing Date and addressed to the jurisdiction of its organizationAdministrative Agent and the Lenders.
(v) A certificate of each Loan Party signed on behalf of such Loan Party by its Secretary or any Assistant Secretary, dated Notes payable to 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 order of any amendments to the charter or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)Lender requesting Notes.
Appears in 2 contracts
Samples: Credit Agreement (Dynegy Inc), 364 Day Revolving Credit Agreement (Dynegy Inc)
Conditions Precedent to Effectiveness. This Agreement shall become be effective on and as upon the satisfaction or waiver of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as in the determination of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the BanksAgent:
(a) The Borrower Agent shall have notified received executed counterparts to this Agreement from the Administrative Agent in writing as to the proposed Effective Date.Company, each other Loan Party and each Lender;
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, as of the Closing Date and in form and substance reasonably satisfactory to the Administrative Agent and each BankAgent:
(i) The A guarantee and collateral acknowledgement and reaffirmation executed and delivered by each Loan Party,
(ii) Notes duly executed by the Borrower to the order of the Banks Lenders to the extent requested by any Bank Lender pursuant to Section 2.19.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.2.16,
(iii) Certified copies of the resolutions of the Governing Body Board of Directors of each Loan Party approving each Loan Document to which it is a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.Document to which it is a party,
(iv) A copy certificate of the secretary or an assistant secretary of each Loan Party 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 hereunder and thereunder,
(v) Such certificates of good standing (to the extent such concept exists in such jurisdiction) from the applicable secretary of state or similar official of the jurisdiction of organization, formation documents and organizational documents of each Loan Party as the Agent may reasonably require, and such other documents as the Agent may reasonably require to evidence that each Loan Party qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except for such jurisdictions to the extent that the Company reasonably determines the failure to so qualify in such jurisdiction would not reasonably be expected to have a Material Adverse Effect;
(vi) a certificate of the Secretary of State chief financial officer of the Company, in the form attached hereto as Exhibit D,
(vii) Copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Agent with respect to the Loan Parties,
(viii) A certificate from the Responsible Officer of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) Company as to the matters set forth in Sections 3.01(d), 3.01(g) and 3.01(k),
(ix) certificates of insurance with respect to the Loan Parties’ property and liability insurance, together with a true loss payable endorsement naming the Agent as loss payee; provided that the Agent and correct copy the Arrangers acknowledge and confirm they have received the certificates required by this subclause (ix) in form and substance that is reasonably satisfactory,
(x) A customary legal opinion of Xxxxxxxx & Xxxxxxxx, special counsel for the charter or other formation documentCompany, as in form and substance reasonably satisfactory to the case may beAgent, and
(xi) A customary legal opinion of such Loan Party Xxx Xxxxxx LLP, New Jersey counsel for the Company, in form and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are substance reasonably satisfactory to the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationAgent.
(vc) A certificate The Agent shall have received a Borrowing Base Certificate as of the most recent calendar month-end if the Closing Date is after the 20th day of a month or otherwise as of the end of the second most recent prior calendar month with customary supporting documentation and supplemental reporting to be reasonably agreed by the Agent and the Company.
(d) No material adverse change in the business, operations, financial condition or assets of Loan Parties (taken as a whole) shall have occurred since December 31, 2015.
(e) The Agent and Arrangers, shall have received, in form and substance satisfactory to them, unaudited interim consolidated financial statements of the Company for each quarterly period ended subsequent to the date of the latest financial statements delivered to Arrangers prior to the Closing Date; provided, that, the Agent and the Arrangers acknowledge and confirm they have received the information required by this paragraph in form and substance that is reasonably satisfactory.
(f) Satisfactory evidence that the Company has received all governmental and third party consents and approvals as may be required in connection with the Revolving Credit Facility and the transactions contemplated thereby.
(g) Minimum opening Excess Availability on the Closing Date of not less than $20,000,000 after the application of proceeds of the initial Revolving Loans and issuance of the initial Letters of Credit and after provision for payment of all fees and expenses of the Closing Date Transactions.
(h) The Lenders shall have received at least three (3) Business Days prior to the Closing Date all documentation and information as is reasonably requested by the Lenders that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case to the extent requested in writing at least ten (10) Business Days prior to the Closing Date.
(i) All fees and expenses required to be paid under the Loan Documents, the Commitment Letter or the Fee Letters and invoiced at least three (3) Business Days prior to the Closing Date (provided, that, the three (3) Business Day invoice requirement shall not apply to amounts due pursuant to the Fee Letters (other than with respect to out of pocket fees and expenses, including legal fees)) shall have been, or will be paid on the Closing Date or arrangements satisfactory to Agent and the Arrangers have been made with regard to the payment thereof.
(j) All documents and instruments required to create and perfect the Agent’s first priority (as to the ABL Priority Collateral) or other priority security interest in and Lien on the Collateral (free and clear of all other Liens other than Permitted Collateral Liens and subject to exceptions permitted by Section 5.02(a)) shall have been executed and delivered and, if applicable, be in proper form for filing.
(k) (i) the representations and warranties of the Borrower and each other Loan Party contained in each Loan Party signed on behalf of such Loan Party by its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in Document to which certificate it is a party shall be true correct on and as of the Effective Date), certifying as to Closing Date in all material respects (A) the absence of any amendments except to the charter extent qualified by materiality or other formation document, as the “Material Adverse Effect,” in which case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a representations and warranties shall be true and correct copy in all respects), before and after giving effect to the effectiveness of this Agreement and the transactions contemplated hereby, as though made on and as of such date; provided, that, any representation or warranty as of a specific date shall only be true or correct in all material respects as of such date and (ii) no event shall have occurred and be continuing, or would result from the effectiveness of this Agreement or the transactions contemplated hereby, that would constitute a Default.
(l) No Default under the Loan Documents shall exist on the Closing Date.
(m) The Agent shall have received reasonably satisfactory evidence that all Revolving Loans (if any) under and as defined in the Existing Credit Agreement shall be repaid, the commitments of the bylawsNon-Consenting Lenders hereunder shall have been terminated pursuant to Section 2.25 (and the Commitments of all continuing and new Lenders shall be as set forth on Schedule I) and all accrued interest and fees under the Existing Credit Agreement shall have been paid, limited liability company agreement or partnership agreementarrangements satisfactory to the Administrative Agent in respect thereof shall have been made. For the avoidance of doubt, as the case may be, all Letters of such Loan Party as in effect on the date on which the resolutions referred Credit outstanding immediately prior to in Section 3.01(b)execution of this Agreement shall continue to and remain outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Eastman Kodak Co), Credit Agreement (Eastman Kodak Co)
Conditions Precedent to Effectiveness. This Agreement shall become effective on The initial obligation of the Revolving Credit Lenders to make Revolving Credit Advances, and as the obligation of any Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction or waiver of the following conditions precedent (the first date (on which all such conditions shall have been satisfied or waived being the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:):
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, day (unless otherwise specified) and (except for the Notes) in form and substance reasonably satisfactory to the Administrative Agent and sufficient copies for each BankInitial Lender:
(i) The Notes duly executed by Executed counterparts of this Agreement and the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.19Guaranty.
(ii) The Guarantee duly executed by each Subsidiary GuarantorNotes payable to the order of the Lenders to the extent requested in accordance with Section 2.17(a).
(iii) Certified copies of the resolutions of the Governing Body boards of directors of each Loan Party of the Borrowers and each Guarantor (as constituted immediately prior to the Effective Date) in customary form approving each Loan Document to which it is a party, the execution and delivery of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Documentthis Agreement.
(iv) A copy of the charter or other constitutive document of each of the Borrowers and each Guarantor and each amendment thereto, certified (as of a certificate of date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation documentorganization, as the case may be, of such Loan Party thereof as being a true and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationcorrect copy thereof.
(v) A certificate of each Loan Party of the Borrowers and each Guarantor signed on behalf of each such Loan Party Borrower and each such Guarantor, respectively, 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), in customary form, certifying as to (A) the accuracy and completeness as of the Effective Date of the charter of each such Borrower or such Guarantor delivered in connection with this Agreement and the absence of any amendments to changes thereto (other than those, if any, occurring on the charter or other formation documentEffective Date upon effectiveness of, and as contemplated by, the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(ivPlan), ; (B) a true the accuracy and correct copy completeness of the bylaws, limited liability company agreement bylaws (or partnership agreement, as the case may be, equivalent organizational document) delivered in connection with this Agreement of each such Loan Party Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(b3.01(a)(ii) were adopted and the absence of any changes thereto; and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of any Borrower or any Guarantor, except as set forth in the Plan.
(vi) A certificate of the Secretary or an Assistant Secretary of each of the Borrowers and each Guarantor, in customary form, certifying the names and true signatures of the officers of each such Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder to which it is a party.
(vii) A certificate (in form and substance reasonably satisfactory to the Administrative Agent) of the Chief Financial Officer of the Company attesting to the Solvency of the Loan Parties, taken as a whole, immediately after giving effect to the Transactions.
(viii) A certificate of a Responsible Officer of the Company, in customary form, certifying that the conditions specified in Sections 3.01(f)(i) and Sections 3.02(i)(A) and (B) have been satisfied.
(ix) The following: (A) reasonably satisfactory evidence that certificates representing the Initial Pledged Equity, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, have been delivered to the administrative agent under the Term Facility (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under the Security Agreement, covering the Collateral described therein, in each case completed in a manner reasonably satisfactory to the Administrative Agent, and (C) evidence of insurance (to the extent required to be maintained pursuant to this Agreement) as reasonably requested by the Administrative Agent.
(A) The Security Agreement, duly executed by each Loan Party, together with evidence that all actions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests in the Revolving Facility Collateral and the second priority Liens and security interests in the Term Facility Collateral, in each case created under the Security Agreement, have been taken or will be taken in accordance with the terms of the Loan Documents, (B) the Intellectual Property Security Agreement, duly executed by each Loan Party having Intellectual Property covered thereby as of the Effective Date, together with evidence that all actions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the second priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents, (C) the Deposit Account Control Agreements and Securities Account Control Agreements, in each case referred to in the Security Agreement and duly executed by the appropriate parties and (D) the Intercreditor Agreement, duly executed by the parties thereto; provided, however, that if the Company is unable to deliver one or more of the items described in clause (C) above after the exercise of commercially reasonable efforts, delivery of such undelivered items shall not be a condition precedent under this Section 3.01, and the Company hereby agrees to deliver such items to the Administrative Agent within 45 days after the Effective Date; provided further that in each case, the Administrative Agent may, in its reasonable discretion, grant extensions of such time period.
(xi) Certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches or equivalent reports or searches, each of a recent date listing financing statements, lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions, as applicable, in which any Loan Party is organized or maintains its principal place of business, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Liens to be satisfied or discharged on the Effective Date pursuant to the Plan or Permitted Liens and other Liens permitted under Section 5.02(a)).
(xii) (A) audited annual financial statements of the Company and its Subsidiaries, on a Consolidated basis, for the year ended December 31, 2009; (B) interim unaudited monthly and quarterly financial statements of the Company and its Subsidiaries since December 31, 2009 through the most recently ended fiscal month ending at least 30 days prior to the Effective Date (or in the case of quarterly financial statements, through the most recently ended fiscal quarter ending at least 45 days prior to the Effective Date); and (C) the Company’s business plan which shall include a financial forecast on a monthly basis for the first twelve months following the funding date of the Term Loan Credit Agreement and on an annual basis thereafter through the year 2014, prepared by the Company’s management.
(xiii) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than Existing Letters of Credit) to be issued, on the Effective Date.
(xiv) A favorable opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Loan Parties, in substantially the form of Exhibit H hereto.
Appears in 2 contracts
Samples: Senior Secured Revolving Facility Credit Agreement (Chemtura CORP), Senior Secured Revolving Facility Credit Agreement (Chemtura CORP)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts The effectiveness of this Agreement duly executed by and the Borrower and all obligations of each Lender to make Loans hereunder are, in each case, subject to the satisfaction of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banksprecedent:
(a) The Borrower Administrative Agent and the Lenders shall have notified the Administrative Agent in writing as to the proposed Effective Datereceived executed counterparts of this Agreement from each party hereto.
(b) The Administrative Agent and the Lenders shall have received on or before the Effective Date the following, each dated such dayas of the Effective Date (unless otherwise specified), in form and substance satisfactory to the Required Lenders, and duly executed and delivered by each party thereto (as applicable):
(i) Notes payable to the Lenders (and their registered assigns) to the extent requested by any Lender on or prior to the Effective Date pursuant to Section 2.07(d);
(ii) a certificate of the secretary or assistant secretary of each Borrower, dated the Effective Date, certifying that attached thereto are (1) true and complete copies of the Organizational Documents of each Borrower certified as of a recent date by the appropriate governmental official, (2) signature and incumbency certificates of the officers of such Person executing the Loan Documents to which it is a party, (3) true and complete resolutions of the Board of Directors of each Borrower approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party or by which it or its assets may be bound as of the Effective Date, and authorizing and approving the borrowings hereunder, and certified as of the Effective Date by its secretary or an assistant secretary that such resolutions are in full force and effect without modification or amendment, (4) a good standing certificate from the applicable Governmental Authority of each Borrowers’ jurisdiction of incorporation, organization or formation and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated a recent date prior to the Effective Date, and (5) such other documents and certificates as the Administrative Agent, the Lenders or its or their counsel may reasonably satisfactory request relating to the organization, existence and good standing of each Borrower, and the authorization of the Transactions;
(iii) the Security Agreement;
(iv) The Escrow Agreement with respect to the Segregated Account;
(v) a certificate from a Responsible Officer of the Borrowers, addressed to the Administrative Agent and each Bank:Lender, as to the matters set forth in Sections 4.01(d), (e), (f), (g), (h), (k) and (l);
(vi) the Initial Budget;
(vii) an Inventory Appraisal and an M&E Appraisal;
(viii) evidence of all insurance required to be maintained pursuant to Section 5.02;
(ix) results of a recent lien search in each relevant jurisdiction with respect to the Borrowers, revealing no liens on any of the assets of the Borrowers or their Subsidiaries except for Liens permitted under Section 6.03; and
(x) the Closing Date Financial Statements.
(c) All UCC financing statements to be filed in order to perfect and protect the Liens and security interests created or purported to be created under the Interim DIP Order and the Security Documents covering the Collateral described therein shall have been properly filed (or provided to the Collateral Agent to be filed) in each jurisdiction required, in each case, in form and substance satisfactory to, and to the extent requested by, the Agents and the Required Lenders.
(d) The Administrative Agent and the Required Lenders shall be reasonably satisfied with the form and substance of the “first day orders” sought by the Borrowers and entered on (or prior to) the Effective Date.
(e) The Borrowers shall have filed a motion seeking approval of the Facility by no later than the Petition Date.
(f) The Interim DIP Order Entry Date shall have occurred not later than three (3) Business Days following the Petition Date.
(g) All “first day orders” and all related pleadings intended to be entered on or prior to the Interim DIP Order Entry Date shall have been entered by the Bankruptcy Court and shall be reasonably satisfactory in form and substance to the Administrative Agent and the Required Lenders.
(h) No trustee under Chapter 7 or Chapter 11 of the Bankruptcy Code or examiner with enlarged powers beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code shall have been appointed in any of the Cases.
(i) The Notes duly executed by Borrowers shall have paid all invoiced fees and expenses of the Borrower Agents and the Lenders accrued and payable on or prior to the order Effective Date, including the accrued fees and expenses of counsel to each of the Banks to Agents and the extent requested by any Bank pursuant to Section 2.19Lenders.
(iij) The Guarantee duly executed Administrative Agent and each Lender shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S. PATRIOT Act, as reasonably requested by the Administrative Agent and each Subsidiary GuarantorLender.
(iiik) Certified copies No Default or Event of Default shall have occurred and be continuing immediately before and after giving effect to the Transactions, any incurrence of Indebtedness hereunder and the use of the resolutions of the Governing Body proceeds hereof on a pro forma basis.
(l) The representations and warranties of each Loan Party approving Borrower contained in each Loan Document to which it is a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a party shall be true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and all material respects (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing all respects if any such representation or presently subsisting under the laws of the State of the jurisdiction of its organization.
(vwarranty is already qualified by materiality) A certificate of each Loan Party signed on behalf of such Loan Party by 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 with the same effect as to (A) the absence though made on and as of any amendments such date, except to the charter or other formation document, as the extent such representations and warranties expressly relate to an earlier date (in which case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a representations and warranties shall be true and correct copy in all material respects (or if applicable, in all respects) as of such earlier date).
(m) The SAPSA shall be in full force and effect. Each Lender, by delivering its signature page to this Agreement, and funding its Loans on or about the bylawsEffective Date, limited liability company agreement shall be deemed to have acknowledged receipt of, and consented to and approved or partnership agreementaccepted or to be satisfied with, each Loan Document and each other document required to be approved by, acceptable or satisfactory to any Agent, the Required Lenders or any other Lenders, as applicable, on or about the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)Effective Date.
Appears in 2 contracts
Samples: Superpriority Senior Secured Priming Debtor in Possession Credit Agreement (Cloud Peak Energy Inc.), Superpriority Senior Secured Priming Debtor in Possession Credit Agreement (Cloud Peak Energy Inc.)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified each Lender and the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Borrower shall have paid all accrued fees and expenses of the Agent and the Lenders (including the accrued fees and expenses of counsel to the Agent).
(c) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) After giving effect to the incurrence of the Loans on the Effective Date and the other transactions contemplated hereby, no event has occurred and is continuing that constitutes a Default.
(d) The Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each BankAgent:
(i) Counterparts of this Agreement, duly executed and delivered by each of the Lenders, the Borrower and the Agent (or in the case of any such party as to which an executed counterpart shall not have been received, the Agent shall have received, in form reasonably satisfactory to it, telecopy, email or other written confirmation from such party of its execution of a counterpart of this Agreement).
(ii) The Notes duly executed by the Borrower to the order of the Banks Lenders to the extent requested by any Bank Lender pursuant to Section 2.19.
(ii) The Guarantee duly executed by each Subsidiary Guarantor2.16 at least five Business Days prior to the Effective Date.
(iii) Certified copies of the resolutions of the Governing Body Board of each Directors of the Borrower approving this Agreement and the other Loan Party approving each Loan Document to which it is a partyDocuments, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each this Agreement and the other Loan DocumentDocuments.
(iv) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying:
(A) that attached thereto is a true and complete copy of the certificate or articles of incorporation, including all amendments thereto, of the Borrower, certified as of a certificate of recent date by the Secretary of State of the jurisdiction of incorporation its organization or by the Secretary or Assistant Secretary or similar officer of each Loan Party, dated reasonably near the Effective Date certifying Borrower or other person duly authorized by the constituent documents of the Borrower,
(AB) as to that attached thereto is a true and correct complete copy of a certificate as to the charter or other formation document, good standing of the Borrower as the case may be, of such Loan Party and each amendment thereto on file in a recent date from such Secretary of State’s office and ,
(BC) that (1) such amendments are attached thereto is a true and complete copy of the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the by-laws of the State Borrower as in effect on the Effective Date and at all times since a date prior to the date of the jurisdiction resolutions described in the following clause (D),
(D) that attached thereto is a true and complete copy of its organizationresolutions duly adopted by the Board of Directors (or equivalent governing body) of the Borrower, authorizing the execution, delivery and performance by the Borrower of this Agreement and the borrowings hereunder, and the execution, delivery and performance of each of the other Loan Documents required hereby with respect to the Borrower and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Effective Date, and
(E) as to the incumbency and specimen signature of each officer or authorized signatory executing this Agreement or any other Loan Document delivered in connection herewith on behalf of the Borrower.
(v) A certificate An opinion of Wachtell, Lipton, Xxxxx & Xxxx, as special New York counsel for the Borrower, with respect to the enforceability of the applicable Loan Documents and other related matters, in each case (A) dated the Effective Date, (B) addressed to each Issuing Bank, the Agent and the Lenders (and their permitted assignees) and (C) in form and substance reasonably satisfactory to the Agent covering such matters relating to the Loan Party signed on behalf Documents as the Agent shall reasonably request.
(vi) Counterparts of such Loan Party the Hedge Guaranty, duly executed and delivered by its Secretary or any Assistant Secretarythe Borrower and the Agent.
(e) The Effective Date Refinancing shall, dated substantially simultaneously with the occurrence of the Effective Date (and in any event no later than the statements made in which certificate shall be true close of business on and as of the Effective Date), certifying as to be consummated.
(Af) Each Lender shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the absence of any amendments Patriot Act to the charter or other formation document, as extent requested by such Lender at least five Business Days prior to the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)Effective Date.
Appears in 2 contracts
Samples: Credit Agreement (Hexcel Corp /De/), Credit Agreement (Hexcel Corp /De/)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as The obligations of the first date Purchaser to pay the Purchase Price for the Transferred Assets sold on the Initial Conveyance Date shall be subject to the satisfaction of the following conditions on or prior to the Closing Date:
(the “Effective Date”a) on which the Administrative Agent shall have received counterparts a copy of this Agreement duly executed by the Borrower and all each of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.parties hereto;
(b) The Administrative Agent shall have received on or before a certificate of a Responsible Officer of the Effective Date Seller, dated the followingClosing Date, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each Bank:
certifying (i) The Notes duly executed by the Borrower as to the order its Constituent Documents, (ii) that each of the Banks representations and warranties made by such Person under the Facility Documents are true and correct as of the Closing Date (except to the extent requested by such representations and warranties expressly relate to any Bank pursuant to Section 2.19.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
earlier date, in which case such representations and warranties shall be true and correct as of such earlier date), (iii) Certified copies that no Default or Event of Default has occurred and is continuing, and (iv) as to the resolutions of the Governing Body incumbency and specimen signature of each Loan Party approving each Loan Document of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(c) a good standing certificate, dated as of a recent date for the Seller, issued by the Maryland Department of Assessments and Taxation;
(d) proper financing statements describing the Transferred Assets, and naming the Seller as the “Debtor/Seller” and the Purchaser as “Secured Party/Buyer”, or other similar instruments or documents, in form and substance sufficient for filing under the UCC or any comparable law of any and all documents evidencing jurisdictions as may be necessary to perfect the Purchaser’s security interest in all Transferred Assets;
(e) copies of properly authorized termination statements or statements of release (on Form UCC-3) or other necessary corporate similar instruments or organizational action and governmental approvalsdocuments, if any, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to release all security interests and similar rights of any Person in the Transferred Assets previously granted by the Seller;
(f) copies of tax and judgment lien searches in all jurisdictions reasonably requested by the Purchaser or its assignees and requests for information (or a similar UCC search report certified by a party acceptable to the Purchaser and its assigns), dated a date reasonably near to the Closing Date, and with respect to each Loan Document.such requests for information or UCC searches, listing all effective financing statements which name the Seller as debtor, together with copies of such financing statements (none of which shall cover any Transferred Assets); and
(ivg) A copy one or more favorable legal opinions of a certificate counsel to the Seller with respect to the perfection and enforceability of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true security interest hereunder and correct copy of the charter or such other formation document, matters as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(v) A certificate of each Loan Party signed on behalf of such Loan Party by its Secretary Purchaser 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 or other formation document, as the case assignee thereof may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)reasonably request.
Appears in 2 contracts
Samples: Sale and Contribution Agreement (Blue Owl Credit Income Corp.), Sale and Contribution Agreement (Owl Rock Technology Income Corp.)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts The effectiveness of this Agreement duly executed by is subject to the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have Lender has received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as evidence, reasonably satisfactory to the proposed Effective Date.
Lender, that all fees and (bto the extent billed) The Administrative Agent shall have received expenses which are payable on or before the Effective Date date hereof to the followingLender hereunder or in connection herewith have been (or concurrently with the execution of this Agreement by the parties will be) paid in full; and (b) each of the following documents:
(i) A copy of each of the certificate of incorporation, each together with all amendments thereto, and the bylaws of the Borrower, certified by the Secretary or Assistant Secretary of the Borrower.
(ii) An incumbency certificate from the Borrower, executed by the Secretary or Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the officers of the Borrower authorized to sign this Agreement, any Notes and any Borrowing Notice, upon which certificate the Lender shall be entitled to rely until informed of any change in writing by the Borrower.
(iii) A copy of a certificate of good standing of the Borrower, certified by the appropriate governmental officer in the jurisdiction of incorporation of the Borrower.
(iv) A copy, certified by the Secretary or Assistant Secretary of the Borrower, of resolutions of the Borrower’s Board of Directors authorizing the execution, delivery and performance of the Loan Documents.
(v) A certificate, signed by an Authorized Officer of the Borrower, stating that on the Closing Date, no Default or Unmatured Default has occurred and is continuing with respect to the Borrower.
(vi) Any Notes requested by the Lender pursuant to Section 2.12 payable to the order of the Lender.
(vii) Copies of all governmental approvals, if any, necessary for the Borrower to enter into the Loan Documents and to obtain Credit Extensions hereunder.
(viii) Such other documents as the Lender or its counsel may reasonably request, including, without limitation, opinions of legal counsel to the Borrower, addressed to the Lender, dated such dayas of the Closing Date, in form and substance reasonably satisfactory to the Administrative Agent and each Bank:
(i) The Notes duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.19Lender.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body of each Loan Party approving each Loan Document to which it is a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(v) A certificate of each Loan Party signed on behalf of such Loan Party by 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 or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)
Appears in 2 contracts
Samples: Credit Agreement (Pepco Holdings Inc), Credit Agreement (Pepco Holdings Inc)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “"Effective Date”") on which the Administrative Agent shall have received counterparts a counterpart of this Agreement duly executed by the Borrower and a counterpart of, or a copy of a signature page to, this Agreement duly executed by all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of (or, in the case of any Bank, a copy of a signature page to) this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each BankAgent:
(i) The Notes duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.192.18.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body Board of each Loan Party Directors of the Borrower approving each Loan Document to which it is a partyDocument, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iii) A certificate of the secretary or an assistant secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign each Loan Document and the other documents to be delivered by the Borrower hereunder.
(iv) A copy of a certificate of the Secretary of State an officer of the jurisdiction Borrower stating the respective ratings by each of incorporation S&P and Moody's of each Loan Party, dated reasonably near the sxxxxx xnsecured long-term debt of the Borrower as in effect on the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationDate.
(v) [Intentionally deleted.]
(vi) A favorable opinion of Bruce A. Metzingxx, Xxxxxxxxx Xxxxetary and Assistant General Counsel for the Borrower, in substantially the form of Exhibit C-1 hereto.
(vii) A favorable opinion of Baker Botts LLP, xxxxsxx xxr the Borrower, in substantially the form of Exhibit C-2 hereto.
(viii) A favorable opinion of Bracewell & Giulxxxx XXX, coxxxxx xxr the Agent, in form and substance satisfactory to the Agent.
(c) On the Effective Date, the following statements shall be true and the Agent shall have received a certificate signed by a duly authorized officer of each Loan Party signed on behalf of such Loan Party by its Secretary or any Assistant Secretarythe Borrower, dated the Effective Date Date, stating that:
(the statements made i) The representations and warranties contained in which certificate shall be true Section 4.01 are correct on and as of the Effective Date), certifying as to and
(Aii) No event has occurred and is continuing that constitutes a Default or an Event of Default.
(d) All accrued fees and reasonable out-of-pocket expenses of the absence Arranger shall have been paid (including the reasonable fees and expenses of any amendments counsel to the charter or other formation document, as the case may be, of such Loan Party since the date Arranger for which invoices have been submitted).
(e) The Borrower shall have paid all accrued fees and reasonable out-of-pocket expenses of the Secretary Agent (including reasonable fees and expenses of State’s certificate referred to in Section 3.01(b)(ivcounsel for which invoices have been submitted), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b).
Appears in 1 contract
Conditions Precedent to Effectiveness. This The provisions of this Agreement shall become effective on and as of the first date day on or before March 26, 2004 (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each Bank(except for the Notes) in sufficient copies for the Banks:
(i) The Notes duly executed by the Borrower Administrative Agent (or its counsel) shall have received from each party hereto either (x) a counterpart of this Agreement signed on behalf of such party or (y) written evidence satisfactory to the order Administrative Agent (which may include telecopy transmission of the Banks to the extent requested by any Bank pursuant to Section 2.19.a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) The Guarantee To the extent requested pursuant to Section 2.19(e), a duly executed by Note of the Company, for the account of each Subsidiary Guarantor.requesting Bank;
(iii) Certified A certificate of the Secretary of the Company certifying (A) copies attached thereto of the resolutions of the Governing Body Board of each Loan Party approving each Loan Document Directors of the Company authorizing and empowering certain officers of the Company to which it is a partyeffect such borrowings as such officers may deem necessary or desirable for proper corporate purposes, subject to the limitations set forth in such resolutions, (B) copies attached thereto of the Certificate of Incorporation and by-laws of the Company, and (C) the names and true signatures of all the officers of the Company authorized to sign this Agreement and the Notes and other documents evidencing other necessary corporate or organizational action to be executed and governmental approvals, if any, with respect to each Loan Document.delivered by the Company hereunder;
(iv) A copy certificate of a duly authorized officer of the Company, dated the Effective Date, certifying that as of such date, (A) the representations and warranties contained in Section 4.01 are correct on and as of the Effective Date and (B) no Default or Event of Default as of the date thereof has occurred and is continuing;
(v) An opinion of Xxxxxxxx & Xxxxxxxx LLP, substantially in the form of Exhibit F hereto; and
(vi) Copies of the restated certificate of incorporation of the Company, together with all amendments, and a certificate of good standing, each certified by the Secretary of State of Delaware, as well as the jurisdiction Company’s employer identification number;
(b) The Company shall have paid all reasonable accrued fees and expenses of incorporation of each Loan Partythe Arrangers, dated reasonably near the Administrative Agent and the Banks which are due and payable on the Effective Date certifying to the extent invoiced (Aincluding, without limitation, the reasonable fees and expenses of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Arrangers and the Administrative Agent);
(c) as Both before and after giving effect to a true and correct copy the Acquisition, there shall have occurred no material adverse change in the business, financial condition, results of operations or properties of the charter Company and its Subsidiaries, taken as a whole, since December 31, 2003;
(d) Both before and after giving effect to the Acquisition, there shall exist no action, suit or other formation documentproceeding (investigative, as judicial or otherwise) against the case may beCompany or any of its Subsidiaries pending before any court or arbitrator or any governmental body, agency or official, or to the knowledge of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws any Responsible Officer of the State Company, threatened, that could reasonably be expected (i) to have a Material Adverse Effect or (ii) to materially and adversely affect the legality, validity or enforceability of the jurisdiction of its organization.this Agreement or any Note;
(ve) A certificate of each Loan Party signed on behalf of such Loan Party by its Secretary or any Assistant Secretary, dated the Effective Date (the statements made The representations and warranties contained in which certificate Section 4.01 shall be true correct on and as of the Effective Date), certifying as though made on and as of such date;
(f) No Default or Event of Default shall have occurred and be continuing;
(g) Evidence (satisfactory in form and substance to the Arrangers) of (Ax) the absence termination of any amendments to the charter or other formation documentcommitments under, and the payment of all amounts owing under, the Company’s existing five-year credit agreement dated as of October 10, 2002 among the Company, the banks party thereto and Bank One, NA, as administrative agent, (y) the case may betermination of the commitments under, and the payment of such Loan Party since all amounts owing under, the date Company’s existing 364-day credit agreement dated as of October 9, 2003 among the Company, the banks party thereto and Bank One, NA as administrative agent and (z) the termination of the commitments under, and the payment of all amounts owing under, Xxxxx Xxxxxxx’x existing credit agreement dated as of March 14, 2003 among Xxxxx Xxxxxxx, the banks party thereto and CNAI as administrative agent, in each case, simultaneously with or immediately following the Effective Date;
(h) A certificate from the Secretary of State’s certificate referred State of the State of Delaware dated a date reasonably close to the date hereof as to the good standing of and organizational documents filed by the Company;
(i) The Acquisition shall have been consummated, without amendment, modification or waiver of the Combination Agreement that would result in or require (x) a resolicitation of proxies pursuant to the Proxy Statement or (y) a waiver of the condition set forth in Section 3.01(b)(iv)4.1 (Dissent Rights) under the Combination Agreement;
(j) The Company’s long-term senior unsecured non-credit enhanced debt rating (and as to which there are no guarantors or other obligors) shall be at least BBB+ (stable) by S&P and Baa2 (stable) by Xxxxx’x;
(k) Xxxxx Xxxxxxx shall have delivered its consolidated financial statements as and for the year ended December 31, (B) a true and correct copy of the bylaws2003, limited liability company agreement or partnership agreementwhich shall have been audited by Deloitte & Touche LLP, as stated in their report attached thereto; and
(l) Such other approvals, opinions and documents relating to this Agreement and the case may betransactions contemplated hereby as the Administrative Agent, of such Loan Party as in effect on any Issuing Bank or any Bank may, through the date on which the resolutions referred to in Section 3.01(b)Administrative Agent, reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Donnelley R R & Sons Co)
Conditions Precedent to Effectiveness. This Agreement The obligations of the Fronting Bank and the Lenders to make Extensions of Credit hereunder shall not become effective on and as of until the first date (the “Effective "Closing Date”") on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all each of the Banks and the following additional conditions precedent shall have been is satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Closing Date the following, each dated such daythe Closing Date, in form and substance reasonably satisfactory to the Administrative Agent and in sufficient copies for the Fronting Bank and each Bank:Lender (except for the Notes):
(i) The Notes Counterparts of this Agreement, duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.19Borrower.
(ii) The Guarantee Contract Notes of the Borrower, duly executed by made to the order of each Subsidiary GuarantorLender in the amount of such Lender's Commitment.
(iii) Certified A certificate of the Secretary or Assistant Secretary of the Borrower certifying:
(A) the names and true signatures of the officers of the Borrower authorized to sign the Loan Documents;
(B) that attached thereto are true and correct copies of:
(1) the Declaration of Trust of the Borrower, together with all amendments thereto, as in effect on such date; (2) the resolutions of the Governing Body Borrower's Board of each Trustees approving the execution, delivery and performance by the Borrower of the Loan Party approving each Loan Document to which it is a party, and of Documents; (3) all documents evidencing other necessary corporate or organizational action and governmental approvalsother similar action, if any, with respect to each the execution, delivery and performance of the Loan DocumentDocuments by the Borrower; and (4) true and correct copies of all Governmental Approvals referred to in clause (i) of the definition of "Governmental Approval" required to be obtained by the Borrower in connection with the execution, delivery and performance by the Borrower of the Loan Documents (including the order of the Securities and Exchange Commission); and
(C) that the resolutions referred to in the foregoing clause (B)(2) have not been modified, revoked or rescinded and are in full force and effect on such date.
(iv) A copy of a certificate signed by the Treasurer or Assistant Treasurer of the Secretary of State of the jurisdiction of incorporation of each Loan PartyBorrower, dated reasonably near the Effective Date certifying as to:
(A) as the delivery to a true the Fronting Bank and correct copy each of the charter or other formation documentLenders, as prior to the case may beClosing Date, of such Loan Party true, correct and each amendment thereto on file in such Secretary complete copies (other than exhibits thereto) of State’s office and all of the Disclosure Documents; and
(B) that (1) such amendments are the only amendments to such Loan Party’s charter on file absence of any material adverse change in such Secretary’s officethe financial condition, and (2) such Loan Party is duly organized and in good standing operations, properties or presently subsisting under the laws prospects of the State of Borrower or the jurisdiction of Borrower and its organizationPrincipal Subsidiaries, taken as a whole, since June 30, 1999, except as disclosed in the Disclosure Documents.
(v) A certificate of each Loan Party signed on behalf a duly authorized officer of such Loan Party by its Secretary or any Assistant Secretarythe Borrower stating that (i) the representations and warranties of the Borrower contained in Section 6.01 are correct, dated the Effective Date (the statements made in which certificate shall be true all material respects, on and as of the Effective Date)Closing Date before and after giving effect to any Extensions of Credit to be made on such date and the application of the proceeds thereof, certifying and (ii) no event has occurred and is continuing which constitutes an Event of Default or Unmatured Default, or would result from such initial Extensions of Credit or the application of the proceeds thereof.
(vi) Such financial, business and other information regarding the Borrower and its Principal Subsidiaries, as to the Fronting Bank or any Lender shall have reasonably requested.
(vii) Favorable opinions of:
(A) the absence of any amendments Day, Xxxxx & Xxxxxx, counsel to the charter or Borrower, in substantially the form of Exhibit 5.01A hereto and as to such other formation document, matters as the case Fronting Bank or any Lender may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), reasonably request;
(B) a true Xxxxxxx X. Xxxxxx, Assistant General Counsel of NUSCO, in substantially the form of Exhibit 5.01B hereto; and correct copy as to such other matters as the Fronting Bank or any Lender may reasonably request; and
(C) King & Spalding, special New York counsel to the Administrative Agent, in substantially the form of Exhibit 5.01C hereto and as to such other matters as the Fronting Bank or any Lender may reasonably request.
(viii) Irrevocable notice to the administrative agent, the lender or other responsible Person under each Existing Credit Facility notifying such Person of the bylawstermination of the commitments or commitment of the lenders or lender or other credit provider thereunder, limited liability company agreement effective on or partnership agreementbefore the Closing Date.
(b) The commitments or commitment under each Existing Credit Facility shall have been terminated and all amounts outstanding thereunder shall have been (or will have been, upon the first Advance and the application of the proceeds thereof on the Closing Date) paid in full.
(c) All fees and other amounts payable pursuant to Section 2.03 hereof or pursuant to the Fee Letter shall have been paid (to the extent then due and payable).
(d) The Administrative Agent shall have received such other approvals, opinions and documents as the case may beFronting Bank or the Majority Lenders, through the Administrative Agent, shall have reasonably requested as to the legality, validity, binding effect or enforceability of such Loan Party as in effect on this Agreement and the date on which Notes or the resolutions referred to in Section 3.01(b)financial condition, operations, properties or prospects of the Borrower and its Principal Subsidiaries.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as The obligation of Lender to make the initial advance of Floor Plan Credit hereunder is subject to the receipt by Lender of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each BankLender:
(i) The Notes a. this Agreement duly executed and delivered by the Borrower to Borrowers;
b. the order Security Agreement duly executed and delivered by Borrowers;
c. certificates of the Banks Secretary of each Borrower, attaching and certifying copies of the Borrower’s Organizational Documents and certifying that the Borrower is registered and qualified to the extent requested by any Bank pursuant do business as a foreign legal entity in each jurisdiction in which Collateral is or is expected to Section 2.19.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified be located, and attaching copies of the resolutions of the Governing Body of each Loan Party approving each Loan Document to which it is a partyits managing stockholders, and of all documents evidencing other necessary corporate directors, members, or organizational action and governmental approvalsmanagers, if any, with respect to each Loan Document.
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation documentauthorized committees, as the case may be, authorizing the execution, delivery and performance of such Loan Party each of the Credit Documents to which that Borrower is a party and certifying the name, title and true signature of each amendment thereto on file in such Secretary officer or member of State’s office and (B) that (1) such amendments a Borrower executing the Credit Documents to which Borrowers are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in a party;
d. certified copies of certificates of good standing or presently subsisting under existence, as may be available from the laws Secretary of the State of Delaware (the jurisdiction of its organization.incorporation or organization of the Borrowers);
e. an opinion of legal counsel to Borrowers addressed to Lender and in form and substance satisfactory to Lender;
f. payment by Borrowers of all fees and reasonable expenses required hereunder or under any other Credit Document to be paid on or prior to the Closing Date in connection with the perfection or registration of the security interests or other Liens granted in favor of Lender in the Collateral pursuant to the Security Agreement;
g. certified copies of requests for information or copies (v) A certificate Form UCC-11), or equivalent reports as of a recent date, listing all effective financing statements that name Borrowers as debtor and that are filed in each Loan Party signed on behalf jurisdiction in which each Borrower is “located” (within the meaning of the UCC), together with copies of such Loan Party by its Secretary other financing statements or any Assistant Secretaryequivalent filings under applicable laws that name Borrowers as debtor;
h. as and to the extent required of Borrowers under the Security Agreement, dated as to each Vessel that to become an item of Inventory of Borrowers financed with the Effective Date (initial Advance to be made hereunder, the statements made in which certificate shall Pledged Collateral, certificates of insurance, and such other invoices, customs receipts, certificates, and papers as may be true on and as necessary to fulfill the requirements of the Effective Date)Security Agreement with respect to such Vessel; and
i. such Powers of Attorney, certifying as to (A) the absence of any amendments to the charter or and other formation documentapprovals, consents, agreements, certificates, and documents, as the case may be, of such Loan Party since the date Lender shall reasonably request for purposes of the Secretary registration and/or perfection of StateLender’s certificate referred security interest and/or Lien in each Vessel that is to in Section 3.01(b)(iv), (B) a true and correct copy become an item of Inventory of Borrowers financed with the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred initial Advance to in Section 3.01(b)be made hereunder.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement The obligations of the Lenders to make Advances hereunder shall not become effective unless on and as of the first date hereof (the “Effective Closing Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all each of the Banks and the following additional conditions precedent shall have been is satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Closing Date the following, each dated such daythe Closing Date, in form and substance reasonably satisfactory to the Administrative Agent and (except for the notes described in clause (ii) below) in sufficient copies for each Bank:
(i) The Notes Counterparts of this Agreement, duly executed by the Borrower to Borrower, the order of the Banks to the extent requested by any Bank pursuant to Section 2.19Administrative Agent and each Bank.
(ii) The Guarantee duly executed by A Note payable to the order of each Subsidiary GuarantorBank that requests one pursuant to Section 3.04(b).
(iii) Certified A certificate of the Secretary or Assistant Secretary of the Borrower certifying:
(A) the names and true signatures of the officers of the Borrower authorized to sign the Loan Documents;
(B) that attached thereto are true and correct copies of: (1) the articles of incorporation and by-laws of the Borrower, together with all amendments thereto, as in effect on such date; (2) the resolutions of the Governing Body Borrower’s board of each directors approving the execution, delivery and performance by the Borrower of the Loan Party approving each Loan Document to which it is a party, and of Documents; (3) all documents evidencing other necessary corporate organizational or organizational action and governmental approvalsother similar action, if any, with respect to each the execution, delivery and performance of the Loan DocumentDocuments by the Borrower; and (4) true and correct copies of all Governmental Approvals referred to in clause (i) of the definition of “Governmental Approval” required to be obtained by the Borrower in connection with the execution, delivery and performance by the Borrower of the Loan Documents; and
(C) that the resolutions referred to in clause (B)(2) above have not been modified, revoked or rescinded and are in full force and effect on such date.
(iv) A copy of a certificate signed by the Treasurer or Assistant Treasurer of the Secretary of State of the jurisdiction of incorporation of each Loan PartyBorrower, dated reasonably near the Effective Date certifying as to:
(A) the Borrowing Limit as to a true and correct copy of in effect on the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and Closing Date;
(B) that (1) such amendments are the only amendments delivery to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws each of the State Banks, prior to the Closing Date, of true, correct and complete copies (other than exhibits thereto) of all of the jurisdiction Disclosure Documents; and
(C) the absence of any material adverse change in the business, condition (financial or otherwise), operations, properties or prospects of the Borrower or the Borrower and its organizationSubsidiaries, taken as a whole, since December 31, 2011, except as disclosed in the Disclosure Documents.
(v) A certificate of each Loan Party signed on behalf a duly authorized officer of such Loan Party by its Secretary or any Assistant Secretarythe Borrower stating that (i) the representations and warranties of the Borrower contained in Section 6.01 are correct, dated the Effective Date (the statements made in which certificate shall be true all material respects, on and as of the Effective Date)Closing Date before and after giving effect to any Advances to be made on such date and the application of the proceeds thereof, certifying and (ii) no event has occurred and is continuing that constitutes an Event of Default or Unmatured Default, or would result from such initial Advances or the application of the proceeds thereof.
(vi) Such financial, business and other information regarding the Borrower and its Subsidiaries, as to any Bank shall have reasonably requested.
(vii) Favorable opinions of:
(A) Xxxxxxx X. Xxxxxx, Assistant General Counsel of NUSCO, in substantially the absence form of any amendments to the charter or other formation documentExhibit 5.01A hereto, as the case may be, and of such Loan Party since the date of the Secretary of State’s certificate referred other counsel as relied upon therein, and as to in Section 3.01(b)(iv), such other matters any Bank may reasonably request; and
(B) a true King & Spalding LLP, special New York counsel to the Administrative Agent, in substantially the form of Exhibit 5.01B hereto, and correct copy as to such other matters as any Bank may reasonably request.
(b) All fees and other amounts payable pursuant to Section 2.02 or pursuant to the Fee Letter shall have been paid (to the extent then due and payable).
(c) The Administrative Agent shall have received such other approvals, opinions and documents as the Majority Lenders, through the Administrative Agent, shall have reasonably requested as to the legality, validity, binding effect or enforceability of this Agreement or the financial condition, operations, properties or prospects of the bylawsBorrower and its Subsidiaries, limited liability company agreement or partnership agreement, taken as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)a whole.
Appears in 1 contract
Samples: Credit Agreement (Public Service Co of New Hampshire)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “"Effective Date”") on which the Administrative Agent shall have received counterparts a counterpart of this Agreement duly executed by the Borrower and a counterpart of, or a copy of a signature page to, this Agreement duly executed by all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of (or, in the case of any Bank, a copy of a signature page to) this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each BankAgent:
(i) The Notes duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.192.18.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body Board of each Loan Party Directors of the Borrower approving each Loan Document to which it is a partyDocument, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iii) A certificate of the secretary or an assistant secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign each Loan Document and the other documents to be delivered by the Borrower hereunder.
(iv) A copy of a certificate of the Secretary of State an officer of the jurisdiction Borrower stating the respective ratings by each of incorporation S&P and Xxxxx'x of each Loan Party, dated reasonably near the senior unsecured long-term debt of the Borrower as in effect on the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationDate.
(v) A certificate of each Loan Party signed on behalf an officer of the Borrower stating that all "Commitments" (as defined in the Existing Agreement) of the "Banks" (as defined in the Existing Agreement) have been terminated, no letter of credit is outstanding thereunder, no "Advances" (as defined in the Existing Agreement) are outstanding under the Existing Agreement, and all fees and other amounts known by the Borrower to be payable under the Existing Agreement have been paid in full. Each Bank that is a party to the Existing Agreement waives the requirement of Section 2.05 of the Existing Agreement that notice of such Loan Party termination be given at least three Business Days prior to such termination.
(vi) A favorable opinion of Xxxxx X. Xxxxxxxxx, Assistant Secretary and Assistant General Counsel for the Borrower, in substantially the form of Exhibit C-1 hereto.
(vii) A favorable opinion of Xxxxx Xxxxx LLP, counsel for the Borrower, in substantially the form of Exhibit C-2 hereto.
(viii) A favorable opinion of Xxxxxxxxx & Xxxxxxxx LLP, counsel for the Agent, in form and substance satisfactory to the Agent.
(c) On the Effective Date, the following statements shall be true and the Agent shall have received a certificate signed by its Secretary or any Assistant Secretarya duly authorized officer of the Borrower, dated the Effective Date Date, stating that:
(the statements made i) The representations and warranties contained in which certificate shall be true Section 4.01 are correct on and as of the Effective Date), certifying as to and
(Aii) No event has occurred and is continuing that constitutes a Default or an Event of Default.
(d) All accrued fees and reasonable out-of-pocket expenses of the absence Co-Lead Arrangers shall have been paid (including the reasonable fees and expenses of any amendments counsel to the charter or other formation document, as the case may be, of such Loan Party since the date Co-Lead Arrangers for which invoices have been submitted).
(e) The Borrower shall have paid all accrued fees and reasonable out-of-pocket expenses of the Secretary Agent (including reasonable fees and expenses of State’s certificate referred to in Section 3.01(b)(ivcounsel for which invoices have been submitted), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b).
Appears in 1 contract
Conditions Precedent to Effectiveness. This The effectiveness of this Agreement shall become effective on (and as occurrence of the first date (the “Effective Date”) on which is subject to the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfiedAgent’s having received, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the followingDate, each dated such dayof the following items, each of which must be in form and substance reasonably satisfactory to the Administrative Agent and the Purchasers in each Banksuch Person’s sole discretion:
(ia) The Notes A fully executed copy of this Agreement, the Purchase and Sale Agreements, the Controlled Account Agreements (covering all Collection Accounts and the Concentration Account), and the Fee Letter, each duly executed and delivered by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.19parties thereto.
(iib) The Guarantee duly executed by Evidence that ownership of each Subsidiary Guarantorof the Collection Accounts has been transferred from the applicable Originator to the Seller.
(iiic) Certified copies A certificate of an appropriate officer, director or manager, as applicable, of each of the Seller, Covanta, individually and as Servicer, and each other Originator, dated as of the Effective Date, certifying (i) a true, correct and complete copy of the resolutions of the Governing Body Board of each Loan Party approving each Loan Document Directors or Managers or other appropriate body of such Person authorizing the execution, delivery and performance by it of the Transaction Documents to which it is a partyparty is attached thereto and, with respect to the certificate of an officer of Covanta, also certifying that a true, correct and complete copy of the resolutions of the Board of Directors of Holding authorizing the execution, delivery and performance by its Subsidiaries of the Transaction Documents is attached thereto; (ii) all documents evidencing other necessary corporate or organizational limited liability company action and governmental approvals, if any, required with respect to each Loan Document.
this Agreement and the other Transaction Documents have been taken; (iviii) A that attached thereto is a true, complete and correct copy of a (A) the certificate of incorporation or formation of such Person, certified by the Secretary of State (or a comparable official) of the jurisdiction such Person’s State of incorporation of each Loan Party, dated organization or formation on a date reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(v) A certificate of each Loan Party signed on behalf of such Loan Party by 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 or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylawscurrent by-laws, limited liability company agreement or partnership agreement, as the case may be, other applicable organizational documents of such Loan Party Person; and (C) good standing (or comparable) certificate of such Person issued by the Secretary of State (or a comparable official) of such Person’s jurisdiction of organization or formation on a date reasonably near the Effective Date; (iv) the names, titles and true signatures of its officers who are authorized to sign the Transaction Documents; (v) that all of the representations and warranties herein and in the other Transaction Documents are true, complete and correct as of the Effective Date and do not fail to state a fact necessary to make the foregoing not materially misleading; and (vi) that there is no Unmatured Termination Events or Termination Events in effect on the Effective Date.
(d) A solvency certificate executed by a senior financial officer of the Seller, Covanta and each other Originator, dated as of the Effective Date, certifying that such Person is Solvent.
(e) Completed search reports, dated a date on which prior to, but reasonably near the resolutions date hereof, listing all federal and state tax liens and Financing Statements filed in any jurisdiction referred to in subsection (f) of this Section 3.01(bthat name Covanta, any other Originator or the Seller as debtor, showing no Adverse Claims on any Subject Property (unless evidence of termination is provided pursuant to subsection (h) of this Section or any interest in Subject Property described therein has been irrevocably released pursuant to the Disclaimer and Release described in subsection (g) of this Section).
(f) Proper Financing Statements suitable for filing under the UCC of all jurisdictions necessary to perfect the transfers of the Subject Property (other than the Controlled Accounts) pursuant to the Purchase and Sale Agreements and this Agreement (i) naming each Originator (other than Covanta) as debtor/seller, Covanta as secured party/purchaser and the Administrative Agent, for the benefit of the Secured Parties, as total assignee secured party; (ii) naming Covanta as debtor/seller, the Seller as secured party/purchaser and the Administrative Agent, for the benefit of the Secured Parties, as total assignee secured party; and (iii) naming the Seller as debtor/seller and the Administrative Agent, for the benefit of the Secured Parties, as secured party/purchaser.
(g) A Disclaimer and Release agreement executed by Covanta and the administrative agent under the Credit Agreement, pursuant to which the administrative agent under the Credit Agreement will irrevocably relinquish any lien on or interest in the Subject Property, the equity of the Seller, and the Covanta Notes and will agree to such other matters as the Administrative Agent may reasonably request.
(h) Acknowledgment copies of proper termination statements (Form UCC-3), any other relevant filings, any lien release agreements, standstill agreements, or other documentation (not otherwise described in subsection (g) of this Section) necessary or desirable to evidence the termination or irrevocable release of all security interests, ownership interests, and other rights of any Person in any Subject Property (not arising under a Transaction Document) or with respect to any Subject Property included in the collateral description of any Financing Statement in effect on or prior to the Effective Date (other than pursuant to a Transaction Document) that has not been terminated (whether or not there is an underlying security interest in such Subject Property by the Person listed as secured party on any such Financing Statement);
(i) Legal opinions of counsel for the Seller, Covanta, individually and as Servicer, and each Originator, each dated as of the Effective Date and addressed to the Purchasers, the Purchaser Agents and the Administrative Agent, from Milbank LLP or in-house counsel regarding: (i) creation and perfection of security interests (as defined in the UCC to include the sale of accounts) pursuant to the Purchase and Sale Agreements and this Agreement; (ii) corporate matters, including limited liability company or corporate authority, documents duly authorized, and enforceability; (iii) requisite approvals, licenses and consents from any Governmental Authority, (iv) no conflict with law, organizational documents, or any material contracts or agreements, including the Credit Agreement; (v) true sale of Pool Assets under each of the Purchase and Sale Agreements and non-consolidation between Seller, on the one hand and Covanta and the other Originators, on the other hand, (vi) that the companies are not required to register as an investment company (specifying, in the case of Seller, the applicability of the exemption set forth in Section 3(c)(5)(A) or (B) of the Investment Company Act), (vii) with respect to the Seller, that it is not a “covered fund” for purposes of the Volker Rule, and (viii) such other matters as are reasonably requested by the Administrative Agent.
(j) Satisfactory results of an audit or field exam (performed by representatives of the Administrative Agent) of the Originators and Servicer with respect to the Receivables, the ability of such Person to perform its obligations under the applicable Transaction Documents, collection, operating and reporting systems, the Credit and Collection Guidelines, and historical receivables data and accounts, including satisfactory results of a review of the respective operating locations.
(k) The stand-alone powers of attorney to be delivered on or prior to the Effective Date described in Section 4.4(b).
(l) Evidence of payment of all accrued and unpaid fees (including the structuring fee set forth in the Fee Letter) and all costs and expenses due and payable under any Transaction Document on or prior to the Effective Date, including the legal fees and expenses of Xxxxx Xxxxx, LLP, counsel to the Administrative Agent.
(m) With respect to any of the Seller, the Servicer, Covanta or any other Originator that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Person.
(n) Such other information with respect to the Pool Receivables and such other approvals or documents, in each case, as the Administrative Agent or any Purchaser may request.
(o) Formal approval of the transactions contemplated by the Transaction Documents by the credit committees and other applicable committees for each of the Purchasers.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Covanta Holding Corp)
Conditions Precedent to Effectiveness. This Agreement shall become be effective on and as upon the satisfaction of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent Purchaser shall have received on or before the Effective Date the following, each dated such dayClosing Date, in form and substance reasonably satisfactory to the Administrative Agent and each BankPurchaser, all of the following:
(ia) The Notes duly executed by the Borrower to the order a copy of the Banks to the extent requested by any Bank pursuant to Section 2.19.
(ii) The Guarantee this Agreement duly executed by each Subsidiary Guarantor.of the parties hereto;
(b) a certificate of a Responsible Officer of the Transferor, dated the Effective Date, certifying (i) the names and true signatures of the incumbent directors and officers of the Transferor authorized to sign this Agreement, the Loan Assignments and all other documents to be executed by the Transferor or in connection herewith (on which certificate the Purchaser and its assignees may conclusively rely until such time as the Purchaser and such assignees shall receive from the Transferor , a revised certificate meeting the requirements of this Section 3.1(b) (ii) that the copy of the certificate of registration or incorporation, as applicable, of the Transferor is a complete and correct copy and that such certificate of registration or incorporation has not been amended, modified or supplemented and is in full force and effect, (iii) Certified copies that the copy of the bylaws of the Transferor is a complete and correct copy, and that such bylaws has not been amended, modified or supplemented and is in full force and effect, and (iv) the resolutions of the Governing Body board of each directors of the Transferor approving and authorizing the execution, delivery and performance by the Transferor of this Agreement, the Loan Party approving each Loan Document Assignments and all other documents to which it is a party, and of all documents evidencing other necessary corporate be executed by the Transferor hereunder or organizational action and governmental approvals, if any, with respect to each Loan Document.in connection herewith;
(ivc) A copy a good standing certificate, dated as of a certificate of recent date for the Transferor, issued by the Secretary of State of the jurisdiction State of incorporation of each Loan Party, dated reasonably near Delaware;
(d) financing statements (the Effective Date certifying (A"Facility Financing Statements") as to a true and correct copy of describing the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s officeSale Portfolio, and (2i) such Loan Party is duly organized naming the Transferor as the "debtor/transferor", the Purchaser as "secured party/buyer" and in good standing the Administrative Agent, on behalf of the Secured Parties, as "secured party/total assignee" and (ii) other similar instruments or presently subsisting documents, as may be necessary under the laws UCC of all appropriate jurisdictions or any comparable law to perfect the Purchaser's interest and the Administrative Agent's, on behalf of the Secured Parties, interests, respectively, in the Sale Portfolio;
(e) financing statements, if any, necessary to release all security interests and other rights of any Person in the Sale Portfolio previously granted by the Transferor;
(f) copies of tax and judgment lien searches in all jurisdictions reasonably requested by the Purchaser or its assignees and requests for information (or a similar UCC search report certified by a party acceptable to the Purchaser and its assigns), dated a date reasonably near to the Closing Date, and with respect to such requests for information or UCC searches, listing all effective financing statements which name the Transferor (under its present name and any previous name) as debtor and which are filed in the State of the jurisdiction Maryland, together with copies of its organization.such financing statements (none of which shall cover any Sale Portfolio);
(vg) A certificate of each Loan Party signed on behalf of such Loan Party all instruments in connection with the transactions contemplated by its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate this Agreement shall be true on satisfactory in form and as of the Effective Date), certifying as to (A) the absence of any amendments substance to the charter or other formation documentPurchaser and the Administrative Agent, as and the case may bePurchaser and the Administrative Agent shall have received from the Transferor copies of all documents (including, without limitation, records of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreementproceedings, approvals and opinions) relevant to the transactions herein contemplated as the case Purchaser and the Administrative Agent may behave reasonably requested;
(h) any necessary third party consents and approvals to the closing of the transactions contemplated hereby, in form and substance satisfactory to the Purchaser;
(i) all fees then required to be paid by the Transferor, if any, in accordance with the provisions of such Loan Party as in effect the Transaction Documents shall have been paid on the date on which Closing Date; and
(j) the resolutions referred Non-Consolidation/True Sale Opinion and one or more favorable Opinions of Counsel of counsel to in Section 3.01(b)the Transferor with respect to the perfection and enforceability of the security interest hereunder and such other matters as the Purchaser or any assignee thereof may reasonably request.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Monroe Capital Income Plus Corp)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts The effectiveness of this Agreement duly executed by and the Borrower and all obligation of Lender to make the initial Revolving Advance shall be subject to the prior satisfaction of each of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banksconditions:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent Lender shall have received on or before the Effective Date each of the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent Lender and each Bankits counsel:
(i1) This Agreement and the Note duly executed and delivered by Borrower;
(2) The Notes Security Agreement duly executed and delivered by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.19.
together with: (ii1) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions existing UCC-1 financing statements duly filed or to be duly filed under the UCC in all jurisdictions desirable, in the opinion of Lender, to perfect the Governing Body of each Loan Party approving each Loan Document security interests created by the Security Agreement;, together with UCC-3s in form and substance satisfactory to which it is a partyLender, and of all documents evidencing terminating any UCC-1 on file (other necessary corporate than those listed on Schedule 6.8, or organizational action and governmental approvals, if any, with respect to each Loan Document.any Permitted Liens);
(iv3) Copies of all corporate action taken by Borrower, including resolutions of its Board of Directors, authorizing the execution, delivery, and performance of the Loan Documents to which Borrower is a party and each other document to be delivered pursuant to this Agreement, certified as of the date of this Agreement by Borrower;
(4) A copy certificate, dated as of a certificate the date of this Agreement, of the Secretary of State Borrower certifying the names and true signatures of the jurisdiction officers or managers of incorporation Borrower authorized to sign the Loan Documents to which each of each Loan Party, dated reasonably near Borrower is a party and the Effective Date certifying (A) as other documents to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting be delivered by Borrower under the laws of the State of the jurisdiction of its organization.this Agreement;
(v5) A certificate favorable opinion of each Loan Party signed on behalf of such Loan Party by its Secretary or any Assistant Secretaryindependent counsel for Borrower satisfactory to Lender, 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 or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), this Agreement;
(B6) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)The Security Documents duly executed by Borrower;
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amendment shall be effective when each of the following conditions shall be satisfied (the date of such effectiveness, the “Amendment Effective Date”):
(a) the Agent shall have received each of the following, each of which shall be originals, telecopies, other electronic image scan transmission (e.g., “pdf” or “tif” via electronic mail), subject to Section 9.06 of the Credit Agreement shall become effective (followed promptly by originals) unless otherwise specified or permitted by the Credit Agreement:
(i) this Amendment, duly executed by the Borrowers, the Loan Parties, the Agent, and Lenders constituting the Required Lenders;
(ii) a certificate signed by a Responsible Officer of the Borrowers certifying that (1) the representations and warranties of the Loan Parties set forth in the Loan Documents are true and correct in all material respects with the same effect as though made on and as of the first date Amendment Effective Date (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a(A) any representation or warranty which by its terms is made as of a specified date are true and correct in all material respects only as of such specified date, and (B) any representation or warranty which is subject to any materiality qualifier shall become effective be required to be true and correct in all respects), (2) no Default or Event of Default exists as of the first date on which Amendment Effective Date; and (3) the Administrative Agent shall have received counterparts execution, delivery and performance by each Loan Party of this Agreement Amendment have been duly executed authorized by all necessary organizational action and do not and will not (i) violate any Requirement of Law applicable to any Loan Party or any Subsidiary; or (ii) violate or result in a default under any indenture, agreement or other instrument binding upon any Loan Party or any Subsidiary or the Borrower and all assets of any Loan Party or any Subsidiary, or give rise to a right thereunder to require any payment to be made by any Loan Party or any of its Subsidiaries, except to the Banks:extent such violation, default, or payment, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; and
(ab) The Borrower shall have notified all reasonable and documented expenses incurred by the Administrative Agent in writing as to connection with the proposed Effective Date.
preparation and negotiation of this Amendment (b) The Administrative Agent shall have received on or before including the Effective Date the following, each dated such day, in form reasonable and substance reasonably satisfactory documented fees and expenses of counsel to the Administrative Agent and each Bank:
(iAgent) The Notes duly executed that have been invoiced at least two Business Days prior to the date hereof shall have been paid in full by the Borrower to the order of the Banks Borrowers as and to the extent requested by any Bank pursuant required to be paid by, and in accordance with, the terms of Section 2.19.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies 9.03 of the resolutions of the Governing Body of each Loan Party approving each Loan Document to which it is a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan DocumentCredit Agreement.
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(v) A certificate of each Loan Party signed on behalf of such Loan Party by 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 or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement shall become effective on Subject to Section 3.04 below, the amendment and as restatement of the first date (Existing Credit Agreement and the “Effective Date”) on which obligation of each Bank to make Advances under this Agreement is subject to the Administrative condition precedent that the Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and (except for the Notes, if any) in sufficient copies for each Bank:
(i) The Notes duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.19.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iiia) Certified copies of the resolutions of the Governing Body Board of Directors, or the Executive Committee thereof, of each Loan Party approving Borrower and each Loan of such Borrower's Subsidiaries being a party to any L/C Collateral Document authorizing the execution of this Agreement, the other Credit Documents to which it each Borrower or Subsidiary is a party, each Notice of A Borrowing, each Notice of B Borrowing, and of all documents other documents, in each case evidencing other any necessary corporate or organizational company action and governmental approvalsand other third party approvals and consents, if any, with respect to each Loan such Credit Document.
(ivb) A certificate of the Secretary or an Assistant Secretary of each Borrower and each of such Borrower's Subsidiaries being a party to any L/C Collateral Document certifying (i) that attached thereto is a complete and correct copy of the Certificate of Incorporation and Bylaws, or other applicable formation documents, of such Borrower or Subsidiary together with any amendments thereto, with a copy of a certificate of the Secretary of State of the jurisdiction of incorporation incorporation, or organization of each Loan Partysuch Borrower or Subsidiary, dated reasonably near the Effective Date Date, certifying (A) as to a true and correct copy of the charter that such Borrower or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party Subsidiary is duly organized qualified and in good standing in such State, (ii) the absence of any amendments to the Certificate of Incorporation and Bylaws of such Borrower or presently subsisting Subsidiary since the date of the Secretary of State's certificate referred to in this clause (b), (iii) the due incorporation and good standing or valid existence of such Borrower or Subsidiary as an entity organized under the laws of the State of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Borrower or Subsidiary, and (iv) the names and true signatures of the officers of such Borrower or Subsidiary authorized to sign this Agreement, the other Credit Documents, Notices of A Borrowing, Notices of B Borrowing and any Notes to be executed by such Borrower and any other documents to be delivered hereunder by such Borrower.
(vc) An opinion of Xxxxxxx X. xxx Xxxxx, General Counsel of TWC, substantially in the form of Exhibit C hereto and as to such other matters as any Bank through the Agent may reasonably request.
(d) An opinion of New York counsel to the Borrowers and Guarantors, substantially in the form of Exhibits D-1 and D-2 hereto and as to such other matters as any Bank through the Agent may reasonably request.
(e) A duly executed and fully effective amendment and restatement of the L/C Agreement and amendment of each of the Progeny Facility documents, other than those automatically amended by virtue of the amendment to this Agreement, each dated the date of this Agreement.
(f) A certificate of an officer of each Loan Party signed on behalf Borrower stating the respective ratings by each of S&P and Xxxxx'x of the senior unsecured long-term debt of such Loan Party by Borrower as in effect on the date of this Agreement.
(g) A certificate of an officer of each Borrower and each of its Secretary or Subsidiaries being a party to any Assistant SecretaryL/C Collateral Document, dated as of the Effective Date date of execution and delivery by each Borrower of this Agreement (the statements made in which each such certificate shall be true on and as of the Effective Datesuch date), certifying as to (Ai) the truth, in all material respects, of the representations and warranties contained in this Agreement (in the case of each Borrower only) and the Credit Documents as though made on and as of the date of the execution and delivery of this Agreement other than any such representations or warranties that, by their terms, refer to a specific date other than such date, in which case as of such specific date and (ii) the absence of any amendments event (x) occurring and continuing after giving effect to this Agreement, the charter or other formation document, as Xxxxxxx Loan Agreement and the case may be, of such Loan Party since the date of the Secretary of State’s certificate agreements referred to in Section 3.01(b)(iv3.01(e) hereof, and assuming the consummation of the transactions contemplated thereby, or (y) resulting from the execution and delivery of this Agreement and the Credit Documents and the performance of such Borrower or such Subsidiary, as applicable, of its obligations hereunder or under any other Credit Document, that constitutes an Event of Default (other than any Event of Default which may arise as a result of a draw or the probability of a draw under a letter of credit).
(h) Evidence that all agency, trustee, custodial, filing service, legal and other fees and disbursements incurred and invoiced the day immediately prior to the Effective Date, including all fees of the Collateral Trustee, Collateral Agent and the Agent and their respective counsel, have been fully paid by the Borrowers.
(Bi) A duly executed and effective amendment to the Pledge Agreement, Security Agreement, Collateral Trust Agreement, LLC Guaranty, and Midstream Guaranty each dated the date of this Agreement.
(j) A duly executed and fully effective amendment and restatement of the Holdings Guaranty.
(k) TWC shall have paid in full all accrued fees and expenses of the Agent (including the accrued fees and expenses of counsel to the Agent and local counsel to the Agent)
(l) Counterparts of this Agreement, duly executed on behalf of each of the Borrowers and the Majority Banks. For purposes of determining compliance with the conditions specified in this Section 3.01, each Bank shall be deemed to have (i) consented to, approved, authorized and accepted and to be satisfied with each document or other matter required under this Section 3.01 (provided that each Bank has received access to a true and correct copy of each document set forth in clauses (i) and (j) hereof and the bylaws, limited liability company agreement or partnership agreementL/C Agreement) and (ii) authorized the Collateral Agent and the Collateral Trustee to execute the documents set forth in clauses (i) and (j) hereof, as applicable, unless both (x) an officer of the case may be, Agent responsible for the transactions contemplated by this Agreement shall have received written notice from such Bank prior to the making of an initial Advance specifying its objection thereto and (y) such Loan Party as in effect on Bank shall not have accepted any portion of the date on which the resolutions referred to fees set forth in Section 3.01(b2.03(a). The Agent shall give TWC notice when all actions required by Section 3.01 have been satisfied.
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Conditions Precedent to Effectiveness. This Agreement Amendment shall become not be effective on and as until each of the first date following conditions precedent has been fulfilled to the reasonable satisfaction of the Agent (the date such conditions have been satisfactorily fulfilled, the “Fifth Amendment Effective Date”) on which ):
a. the Administrative Agent shall have received counterparts Agent’s receipt of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each of which shall be originals, telecopies, other electronic image scan transmission (e.g., “pdf” or “tif” via electronic mail) or DocuSign® electronic signature, subject to Section 10.10 of the Credit Agreement (followed promptly by originals) unless otherwise specified or permitted by the Credit Agreement, each properly executed by a Responsible Officer of the signing Loan Party or the Lenders, as applicable, each dated the date hereof (or, in the case of certificates of governmental officials, a recent date before such day, date) and each in form and substance reasonably satisfactory to the Administrative Agent and each BankAgent:
(i) The Notes i. this Amendment, duly executed by the Borrower Borrower, the Guarantors, the Agent, and Lenders constituting the Required Lenders (in the case of the amendments set forth in Section 1 of this Amendment other than to the order definition of “Aggregate Commitment”) and each Increasing Lender (in the case of the Banks to the extent requested by any Bank pursuant to Section 2.19.Commitment Increase);
(ii) The Guarantee duly . a Note, or amended and restated Note, as applicable, executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body Borrower in favor of each Loan Party approving each Loan Document to which it is Lender requesting a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that Note not later than one (1) such amendments are Business Day prior to the only amendments to such Loan Party’s charter on file in such Secretary’s office, Fifth Amendment Effective Date and (2) such Loan Party is duly organized and in good standing or presently subsisting under reflecting the laws of the State of the jurisdiction of its organization.
(v) A certificate of each Loan Party signed on behalf Commitment of such Loan Party by its Secretary Lender after giving effect to this Amendment (provided, that any Note being replaced or any Assistant Secretary, dated the Effective Date (the statements made in which certificate amended and restated shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments returned to the charter or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(ivBorrower for cancellation), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b);
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement The obligation of each Lender, each LC Issuing Bank and the Swingline Lender to make the initial Extension of Credit to be made by it hereunder shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date such date of effectiveness the following, each dated such dayday (except as noted otherwise below), in form and substance reasonably satisfactory to the Administrative Agent and, to the extent requested by the Administrative Agent, in sufficient copies (except with respect to the promissory notes described in paragraph (i) below) for the Swingline Lender, each Lender and each LC Issuing Bank:
(i) The Notes Promissory notes payable to each Lender that has requested the same prior to such date pursuant to Section 2.10(d), duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.19Borrower.
(ii) The Guarantee duly executed (A) A copy of the articles of incorporation or other organizational documents of the Borrower and each amendment thereto, certified by each Subsidiary Guarantorthe Secretary of State of Iowa as being a true and correct copy thereof, and (B) a certificate from the Secretary of State of Iowa (dated not more than 10 days prior to the date hereof) attesting to the continued existence and good standing of the Borrower in that State.
(iii) Certified copies of the resolutions of the Governing Body board of each directors of the Borrower approving this Agreement and the other Loan Party approving each Loan Document to which it is a party, Documents and of all documents evidencing other necessary corporate or organizational action and governmental approvalsGovernmental Approvals required for the execution, if any, with respect to each delivery and performance by the Borrower of this Agreement and the other Loan DocumentDocuments.
(iv) A copy of a certificate of the Secretary of State or Assistant Secretary of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date Borrower certifying (A) as to a the names and true and correct copy signatures of the charter or officers of the Borrower authorized to sign this Agreement and the other formation documentdocuments to be delivered by the Borrower hereunder, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments attached thereto are the only amendments to such Loan Party’s charter on file in such Secretary’s office, true and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws correct copies of the State bylaws of the jurisdiction of its organizationBorrower as in effect on such date.
(v) A certificate favorable opinion of each Loan Party signed on behalf in-house counsel for the Borrower, substantially in the form of Exhibit D-1 hereto.
(vi) A favorable opinion of special New York counsel for the Borrower, substantially in the form of Exhibit D-2 hereto.
(vii) A favorable opinion of King & Spalding LLP, counsel for the Administrative Agent, in the form of Exhibit E hereto.
(b) On such Loan Party by its Secretary or any Assistant Secretarydate, dated the Effective Date (the following statements made in which certificate shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated such date, stating that:
(i) The representations and warranties of the Borrower contained in this Agreement are true and correct on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter or other formation document, as the case may be, date of such Loan Party since the date effectiveness as though made on and as of such date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Borrower shall have paid all accrued fees and expenses of the Secretary of State’s certificate referred to in Section 3.01(b)(iv)Administrative Agent, (B) a true the Global Coordinator, the Joint Lead Arrangers and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect Lenders payable on the date hereof (including the accrued fees and expenses of counsel to the Administrative Agent to the extent then due and payable).
(d) The Administrative Agent shall have received all documentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, to the extent such documentation or information is requested by the Administrative Agent on which behalf of the resolutions referred to Lenders reasonably in Section 3.01(b)advance of the date hereof.
(e) The Administrative Agent shall have received such other approvals or documents as the Administrative Agent, the Swingline Lender, any Lender or any LC Issuing Bank shall have reasonably requested through the Administrative Agent reasonably in advance of the date hereof.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts The effectiveness of this Agreement duly executed and the obligation of the Lender to make the initial Revolving Loan and the initial Line of Credit Loan shall be subject to the prior satisfaction of each of the following conditions, unless waived by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the BanksLender in writing:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent Lender shall have received on or before the Effective Date each of the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent Lender and each Bankits counsel:
(i) The Notes this Agreement, the Revolving Loan Note and each applicable Line of Credit Note duly executed and delivered by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.19.Borrower;
(ii) The Guarantee a duly executed by each Subsidiary Guarantor.Guaranty Agreement from the Guarantors, if any;
(iii) Certified copies of all corporate action taken by each of the Borrower and Guarantors, if any, including resolutions of the Governing Body Board of each Directors, authorizing the execution, delivery, and performance of the Loan Party approving each Loan Document Documents to which it is a partyparty and each other document to be delivered pursuant to this Agreement, and certified as of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iv) A copy the date of a certificate of this Agreement by the Secretary of State of the jurisdiction of incorporation of Borrower or each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation documentGuarantor, as the case may be;
(iv) a certificate, dated as of the date of this Agreement, of such Loan Party the Secretary of the Borrower and each amendment thereto on file in Guarantor, if any, certifying the names and true signatures of the officers of the Borrower and such Guarantor authorized to sign the Loan Documents to which the Borrower or such Guarantor is a party and the other documents to be delivered by the Borrower under this Agreement;
(v) a favorable opinion of independent counsel for the Borrower and the Guarantors satisfactory to the Lender, dated the date of this Agreement;
(vi) evidence of insurance and copies of insurance policies evidencing compliance with the insurance requirements of this Agreement;
(vii) the certificates of incorporation or articles of organization (certified by the Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction state of incorporation) and bylaws of the Borrower and each Guarantor, if any;
(viii) a Certificate of Good Standing or Certificate of Legal Existence issued by the Secretary of the State of the states of incorporation and qualification of the Borrower and each Guarantor, if any, evidencing that the Borrower or such Guarantor is a corporation in good standing or legally exists in the state of its organizationincorporation and in each State where it is qualified to do business;
(ix) to the extent reasonably available, tax clearance letters (Sales and Use, Corporate and Labor) from the Department of Revenue or similar taxing Governmental Authority relating to the Borrower and each Guarantor, if any;
(x) all other documents, instruments and agreements that the Lender shall reasonably require in connection with this Agreement; and
(xi) evidence that the Borrower has established and maintains its primary depository accounts with the Lender.
(vb) A certificate of each Loan Party signed on behalf of such Loan Party by its Secretary or any Assistant Secretary, dated the Effective Date (the statements made All representations and warranties contained in which certificate this Agreement shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)all material respects.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Amended Agreement shall not become effective on effective, and as no Lender shall be obligated to make any Advance, until each of the first date following conditions precedent is satisfied:
(the “Effective Date”i) on which the The Administrative Agent shall have received counterparts of this Amended Agreement duly executed by the Borrower and all each of the Banks and parties listed on the following additional conditions precedent signature pages hereof (or in the case of any party as to which such an executed counterpart shall not have been satisfiedreceived, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all evidence satisfactory to it of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Dateexecution and delivery of a counterpart hereof by such party).
(bii) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, following in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Committed Notes) in sufficient copies for each BankLender:
(iA) The Committed Notes duly executed by the Borrower payable to the order of the Banks to the extent requested by any Bank pursuant to Section 2.19Lenders.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iiiB) Certified copies of the resolutions of the Governing Body Board of Directors of each Loan Party approving the transactions contemplated by the Loan Documents and each Loan Document to which it is or is to be a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvalsand other third party approvals and consents, if any, with respect to transactions contemplated by the Loan Documents and each Loan DocumentDocument to which it is or is to be a party.
(ivC) A copy of a certificate of the Secretary of State or other appropriate official of the jurisdiction of incorporation of (x) each Loan Partyof ACE INA and ACE Guaranty, dated reasonably near the Effective Date date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the its charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s Secretary's office and (B) that (1) such amendments are the only amendments to such Loan Party’s its charter on file in such Secretary’s 's office, and (2) it has paid all franchise taxes to the date of such Loan Party certificate and (C) it is duly organized incorporated and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationincorporation and (y) each other Loan Party, dated reasonably near the Initial Extension of Credit, certifying as to the good standing (or existence) of such Loan Party.
(vD) A certificate of each Loan Party Party, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date date of the Initial Extension of Credit (the statements made in which certificate shall be true on and as of the Effective Datedate of the Initial Extension of Credit), certifying as to (A1) in the case of each of ACE INA and ACE Guaranty, the absence of any amendments to the charter or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s 's certificate referred to in Section 3.01(b)(iv3.01(ii)(C), (B2) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as bylaws (in the case may be, of ACE INA and ACE Guaranty) or the constitutional documents (in the case of each other Loan Party) of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b3.01(ii)(B) were adopted and on the date of the Initial Extension of Credit, (3) the due incorporation and good standing or valid existence of such Loan Party as a corporation organized under the laws of the jurisdiction of its incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (4) 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 (5) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(E) A certificate of the Secretary or an Assistant Secretary of each Loan Party 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 hereunder and thereunder.
(F) A favorable opinion of (1) Xxxxxx and Calder, Cayman Islands counsel for the Parent, in substantially the form of Exhibit D-1 hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request, (2) Xxxxx, Xxxxx & Xxxxx, New York counsel for the Loan Parties, in substantially the form of Exhibit D-2 hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request, (3) Xxxxxxx Xxxx & Xxxxxxx, Bermuda counsel for ACE Bermuda and Tempest, in substantially the form of Exhibit D-3 hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request and (4) Xxxxx & Xxxxxxx, Maryland counsel for ACE Guaranty, in substantially the form of Exhibit D-4 hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request.
(iii) There shall have occurred no material adverse change since December 31, 1999 in the business, financial condition, operations or properties of the Parent and its Subsidiaries, taken as a whole.
(iv) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (x) could be reasonably expected to have a Material Adverse Effect or (y) would reasonably be expected to materially adversely affect the legality, validity or enforceability of any Loan Document or the other transactions contemplated by the Loan Documents.
(v) The Borrowers shall have paid all accrued fees of the Agents and the Lenders and all accrued expenses of the Agents (including the accrued fees and expenses of counsel to the Administrative Agent and local counsel on behalf of all of the Lenders), in each case to the extent then due and payable. On the Effective Date the Existing Agreement will be automatically amended and restated in its entirety to read as set forth in this Amended Agreement. On and after the Effective Date the rights and obligations of the parties hereto shall be governed by this Amended Agreement; provided the rights and obligations of the parties hereto with respect to the period prior to the Effective Date shall continue to be governed by the provisions of the Existing Agreement. On the Effective Date, any Lender whose WC Commitment is changed to zero shall cease to be a Lender party to this Agreement and all accrued fees and other amounts payable under this Agreement for the account of such Lender shall be due and payable on such date; provided that the provisions of Section 2.10, 2.12 and 9.04 of this Agreement shall continue to inure to the benefit of each such Lender. The Notes delivered to each Lender under the Existing Agreement shall be canceled and Notes under this Amended Agreement shall be given in substitution therefor. Each Lender shall promptly after the Effective Date deliver to the Borrowers for cancellation the Notes delivered to such Lender under the Existing Agreement. The Agent shall promptly notify the Borrowers and each Lender of the effectiveness of the Amended Agreement, and such notice shall be conclusive and binding on all parties hereto. The Banks that are parties to the Existing 2,050 Million Credit Facility, comprising the "Required Banks" as defined therein, and ACE INA (the "Borrower" as defined under the Existing 2,050 Million Credit Facility), Parent, ACE Bermuda and Tempest (Parent, ACE Bermuda and Tempest, the "Guarantors" as defined under the Existing 2,050 Million Credit Facility, and along with ACE INA, the "2,050 Million Obligors") agree that the commitments under the Existing 2,050 Million Credit Facility shall terminate in their entirety simultaneously with and subject to the effectiveness of this Agreement and that the 2,050 Million Obligors shall be obligated to pay on the Effective Date all principal amounts outstanding thereunder, together with all accrued interest and fees and all other amounts then payable thereunder to but excluding the Effective Date.
Appears in 1 contract
Samples: 364 Day Credit Agreement (Ace LTD)
Conditions Precedent to Effectiveness. This Agreement The obligations of the Fronting Bank and the Lenders to make Extensions of Credit hereunder shall not become effective on and as of until the first date (the “Effective Closing Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all each of the Banks and the following additional conditions precedent shall have been is satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Closing Date the following, each dated such daythe Closing Date, in form and substance reasonably satisfactory to the Administrative Agent and in sufficient copies for the Fronting Bank and each BankLender:
(i) The Notes Counterparts of (A) this Agreement, duly executed by the Borrower, the Administrative Agent, the Fronting Bank and the Initial Banks and (B) the Side Letter, duly executed by the Borrower to and the order of the Banks to the extent requested by any Bank pursuant to Section 2.19Initial Banks.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.A certificate of the Secretary or Assistant Secretary of the Borrower certifying:
(iiiA) Certified the names and true signatures of the officers of the Borrower authorized to sign the Loan Documents;
(B) that attached thereto are true and correct copies of: (1) the Declaration of Trust of the Borrower, together with all amendments thereto, as in effect on such date; (2) the resolutions of the Governing Body Borrower’s board of each trustees approving the execution, delivery and performance by the Borrower of the Loan Party approving each Loan Document to which it is a party, and of Documents; (3) all documents evidencing other necessary corporate or organizational action and governmental approvalsother similar action, if any, with respect to the execution, delivery and performance of the Loan Documents by the Borrower; and (4) true and correct copies of all Governmental Approvals referred to in clause (i) of the definition of “Governmental Approval” required to be obtained by the Borrower in connection with the execution, delivery and performance by the Borrower of the Loan Documents (including the order of the Securities and Exchange Commission); and
(C) that the resolutions referred to in clause (B)(2) above have not been modified, revoked or rescinded and are in full force and effect on such date.
(iii) A certificate signed by the Treasurer or Assistant Treasurer of the Borrower, certifying as to:
(A) the delivery to the Fronting Bank and each Loan Documentof the Lenders, prior to the Closing Date, of true, correct and complete copies (other than exhibits thereto) of all of the Disclosure Documents; and
(B) the absence of any material adverse change in the business, condition (financial or otherwise), operations, properties or prospects of the Borrower or the Borrower and its Principal Subsidiaries, taken as a whole, since June 30, 2005, except as disclosed in the Disclosure Documents.
(iv) A copy certificate of a certificate duly authorized officer of the Secretary of State Borrower stating that (i) the representations and warranties of the jurisdiction of incorporation of each Loan PartyBorrower contained in Section 6.01 are correct, dated reasonably near the Effective Date certifying (A) in all material respects, on and as to a true and correct copy of the charter or other formation document, as Closing Date before and after giving effect to any Extensions of Credit to be made on such date and the case may be, application of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s officeproceeds thereof, and (2ii) no event has occurred and is continuing that constitutes an Event of Default or Unmatured Default, or would result from such Loan Party is duly organized and in good standing initial Extensions of Credit or presently subsisting under the laws application of the State of the jurisdiction of its organizationproceeds thereof.
(v) A certificate of each Loan Party signed on behalf of such Loan Party by Such financial, business and other information regarding the Borrower and its Secretary Principal Subsidiaries, as the Fronting Bank or any Assistant Secretary, dated the Effective Date Lender shall have reasonably requested.
(the statements made in which certificate shall be true on and as of the Effective Date), certifying as to vi) Favorable opinions of:
(A) Xxxxxxx X. Xxxxxx, Assistant General Counsel of NUSCO, in substantially the absence form of any amendments Exhibit 5.01A hereto, and of such other counsel as relied upon therein; and as to the charter or such other formation document, matters as the case Fronting Bank or any Lender may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), reasonably request; and
(B) a true King & Spalding LLP, special New York counsel to the Administrative Agent, in substantially the form of Exhibit 5.01B hereto and correct copy as to such other matters as the Fronting Bank or any Lender may reasonably request.
(b) All fees and other amounts payable pursuant to Section 2.03 hereof or pursuant to the Fee Letter shall have been paid (to the extent then due and payable).
(c) The Administrative Agent shall have received such other approvals, opinions and documents as the Fronting Bank or the Majority Lenders, through the Administrative Agent, shall have reasonably requested as to the legality, validity, binding effect or enforceability of this Agreement or the financial condition, operations, properties or prospects of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)Borrower and its Principal Subsidiaries.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Bankssatisfied or waived:
(a) The Borrower Kraft shall have notified the each Lender and JPMorgan Chase, as Administrative Agent Agent, in writing as to the proposed Effective Date.
(b) The On the Effective Date, the following statements shall be true and JPMorgan Chase, as Administrative Agent Agent, shall have received for the account of each Lender a certificate signed by a duly authorized officer of Kraft, dated the Effective Date, stating that:
(i) the representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) no event has occurred and is continuing that constitutes a Default or Event of Default.
(c) JPMorgan Chase, as Administrative Agent, shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the JPMorgan Chase, as Administrative Agent and each BankAgent:
(i) The Notes duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.19.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body Board of each Loan Party Directors of Kraft approving each Loan Document to which it is a partythis Agreement, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Documentthis Agreement.
(ii) A certificate of the Secretary or an Assistant Secretary of Kraft certifying the names and true signatures of the officers of Kraft authorized to sign this Agreement and the other documents to be delivered hereunder.
(iii) Favorable opinions of counsel (which may be in-house counsel) for Kraft, substantially in the form of Exhibits E-1 and E-2 hereto.
(iv) A copy of a certificate of the Secretary chief financial officer or treasurer of State Kraft certifying that as of the jurisdiction of incorporation of each Loan PartyDecember 31, dated reasonably near the Effective Date certifying 2006 (A) as the aggregate amount of Debt, payment of which is secured by any Lien referred to a true and correct copy in clause (iii) of the charter or other formation documentSection 5.02(a), as the case may bedoes not exceed $400,000,000, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that the aggregate amount of Debt included in clause (1A) such amendments are the only amendments of this subsection (iv), payment of which is secured by any Lien referred to such Loan Party’s charter on file in such Secretary’s officeclause (iv) of Section 5.02(a), and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationdoes not exceed $200,000,000.
(vd) A certificate This Agreement shall have been executed by Kraft, JPMorgan Chase and Citibank, as Administrative Agents, and Gxxxxxx Sxxxx Credit Partners L.P. and Deutsche Bank Securities Inc., as Syndication Agents, and JPMorgan Chase, as Administrative Agent, shall have been notified by each Initial Lender that such Initial Lender has executed this Agreement. JPMorgan Chase, as Administrative Agent, shall notify Kraft and the Initial Lenders of each Loan Party signed on behalf of such Loan Party by its Secretary or any Assistant Secretary, dated the date which is the Effective Date (upon satisfaction or waiver of all of the statements made conditions precedent set forth in which certificate this Section 3.01. For purposes of determining compliance with the conditions specified in this Section 3.01, each Lender shall be true on and deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of JPMorgan Chase, as of Administrative Agent, responsible for the transactions contemplated by this Agreement shall have received notice from such Lender prior to the date that Kraft, by notice to the Lenders, designates as the proposed Effective Date), certifying as to (A) the absence of any amendments to the charter or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)specifying its objection thereto.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Kraft Foods Inc)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “"Effective Date”") on which the Administrative Agent shall have received counterparts a counterpart of this Agreement duly executed by the Borrower and a counterpart of, or a copy of a signature page to, this Agreement duly executed by all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of (or, in the case of any Bank, a copy of a signature page to) this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each BankAgent:
(i) The Notes duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.192.18.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body Board of each Loan Party Directors of the Borrower approving each Loan Document to which it is a partyDocument, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iii) A certificate of the secretary or an assistant secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign each Loan Document and the other documents to be delivered by the Borrower hereunder.
(iv) A copy certificate of a certificate Responsible Officer stating the respective ratings by each of S&P and Mxxxx'x of the Secretary of State senior unsecured long-term debt of the jurisdiction of incorporation of each Loan Party, dated reasonably near Borrower as in effect on the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationDate.
(v) A certificate of each Loan Party signed on behalf a Responsible Officer stating that (A) all "Commitments" (as defined in the Existing Agreement) of the "Banks" (as defined in the Existing Agreement) have been terminated, (B) either (1) no letter of credit is outstanding thereunder or (2) any such letters of credit are deemed to be Existing Letters of Credit under this Agreement, (C) no "Advances" (as defined in the Existing Agreement) are outstanding under the Existing Agreement, and (D) all fees and other amounts known by the Borrower to be payable under the Existing Agreement have been paid in full. Each Bank that is a party to the Existing Agreement waives the requirement of Section 2.05 of the Existing Agreement that notice of such Loan Party termination be given at least three Business Days prior to such termination.
(vi) A favorable opinion of Bxxxx X. Xxxxxxxxx, Assistant Secretary and Senior Director for the Borrower, in substantially the form of Exhibit C-1 hereto.
(vii) A favorable opinion of Bxxxx Bxxxx LLP, counsel for the Borrower, in substantially the form of Exhibit C-2 hereto.
(c) On the Effective Date, the following statements shall be true and the Agent shall have received a certificate signed by its Secretary or any Assistant Secretarya Responsible Officer, dated the Effective Date Date, stating that:
(the statements made i) The representations and warranties contained in which certificate shall be true Section 4.01 are correct on and as of the Effective Date), certifying as to and
(Aii) No event has occurred and is continuing that constitutes a Default or an Event of Default.
(d) All accrued fees and reasonable out-of-pocket expenses of the absence Joint Lead Arrangers shall have been paid (including the reasonable fees and expenses of any amendments counsel to the charter or other formation document, as the case may be, of such Loan Party since the date Joint Lead Arrangers for which invoices have been submitted).
(e) The Borrower shall have paid all accrued fees and reasonable out-of-pocket expenses of the Secretary Agent (including reasonable fees and expenses of State’s certificate referred to in Section 3.01(b)(ivcounsel for which invoices have been submitted), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b).
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts The effectiveness of this Agreement duly executed by and the Borrower and all obligations of each Term Lender to fund its respective Loans on the Closing Date shall be subject to the satisfaction of the Banks and the following additional conditions precedent shall have been (the first Business Day on which such conditions precedent are so satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:“Closing Date”):
(a) The Borrower Agent shall have notified received duly executed counterparts of this Agreement from the Administrative Agent in writing Borrower, each Lender as to of the proposed Effective DateClosing Date and the Agent.
(b) The Administrative Agent shall have received on or before the Effective Closing Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each BankAgent:
(i) The Notes duly executed by the Borrower to the order A certificate of the Banks to the extent requested by any Bank pursuant to Section 2.19.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body Secretary, Assistant Secretary or other Responsible Officer of each Loan Party approving each Loan Document to which it is a party, dated the Closing Date and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to that attached thereto is a true and correct complete copy of the charter by-laws (or other formation comparable organizational document, as the case may be, ) of such Loan Party as in effect on the Closing Date and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(v) A certificate of each Loan Party signed on behalf of such Loan Party by 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 or other formation document, as the case may be, of such Loan Party at all times since the date of the Secretary of State’s certificate referred to resolutions described in Section 3.01(b)(iv)clause (B) below, (B) that attached thereto is a true and correct complete copy of resolutions duly adopted by the board of directors (or comparable governing body) of such Loan Party authorizing the execution and delivery of the Loan Documents to which such Loan Party is a party and the performance of its obligations thereunder including, in the case of the Borrower, the Borrowing under the Term Facility, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that attached thereto is a certified copy of the bylawscertificate or articles of incorporation (or comparable organizational document), limited liability company agreement or partnership agreement, as the case may beincluding all amendments thereto, of such Loan Party as in effect on the Closing Date, certified as of a recent date by the Secretary of State (or comparable entity) of the jurisdiction of its incorporation or organization, as applicable, (D) that attached thereto is a certificate as to the good standing (where such concept is applicable) of such Loan Party as of a recent date, from the Secretary of State (or comparable authority) of the jurisdiction of its incorporation or organization, as applicable, and (E) as to the incumbency and specimen signature of each Responsible Officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party.
(ii) A certificate of another Responsible Officer (or in the event the applicable Loan Party only has one Responsible Officer, any other officer of such Loan Party) as to the incumbency and specimen signature of the Secretary, Assistant Secretary or Responsible Officer executing the certificate pursuant to clause (i) above.
(iii) A favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel for the Borrower and the other Loan Parties, dated as of the Closing Date, addressed to the Administrative Agent, the Collateral Agent and each Lender in form and substance reasonably satisfactory to the Agent and covering such other matters relating to the Loan Documents and the Transactions as the Agent shall reasonably request.
(iv) Any Notes, to the extent requested at least three (3) Business Days prior to the Closing Date by any Lender pursuant to Section 2.16.
(c) The Administrative Agent shall have received a Notice of Borrowing as required under Section 2.02 and in the form attached hereto as Exhibit B.
(d) The Administrative Agent shall have received a solvency certificate from a Financial Officer of the Borrower in the form attached hereto as Exhibit E.
(e) All fees required to be paid by the Borrower hereunder or as separately agreed by the Borrower and any of the Arrangers or the Lenders, in each case on or prior to the Closing Date, and, to the extent invoiced at least three (3) Business Days prior to the Closing Date, all invoiced expenses of the Agent and the Arrangers relating hereto (including those of counsel to the Agent and the Arrangers), shall have in each case been paid (which amounts may be offset against the resolutions referred to in Section 3.01(bproceeds of the Loans on the Closing Date).
Appears in 1 contract
Samples: Credit Agreement (Cloudera, Inc.)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts a counterpart of this Agreement duly executed by the Borrower and a counterpart of, or a copy of a signature page to, this Agreement duly executed by all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of (or, in the case of any Bank, a copy of a signature page to) this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each BankAgent:
(i) The Notes duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.192.18.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body Board of each Loan Party Directors of the Borrower approving each Loan Document to which it is a partyDocument, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iii) A certificate of the secretary or an assistant secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign each Loan Document and the other documents to be delivered by the Borrower hereunder.
(iv) A copy certificate of a certificate Responsible Officer stating the respective ratings by each of S&P and Xxxxx’x of the Secretary of State senior unsecured long-term debt of the jurisdiction of incorporation of each Loan Party, dated reasonably near Borrower as in effect on the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationDate.
(v) A certificate of each Loan Party signed on behalf a Responsible Officer stating that (A) all “Revolving Credit Commitments” (as defined in the Existing Agreement) of the “Banks” (as defined in the Existing Agreement) have been terminated, (B) either (1) no letter of credit is outstanding thereunder or (2) any such letters of credit are deemed to be Existing Letters of Credit under this Agreement, (C) no “Advances” (as defined in the Existing Agreement) are outstanding under the Existing Agreement, and (D) all fees and other amounts known by the Borrower to be payable under the Existing Agreement have been paid in full. Each Bank that is a party to the Existing Agreement waives the requirement of Section 2.05 of the Existing Agreement that notice of such Loan Party termination be given at least three (3) Business Days prior to such termination.
(vi) A favorable opinion of Xxxxx X. Xxxxxxxxx, Assistant Secretary and Senior Director for the Borrower, in substantially the form of Exhibit C-1 hereto.
(vii) A favorable opinion of Xxxxx Xxxxx L.L.P., counsel for the Borrower, in substantially the form of Exhibit C-2 hereto.
(c) On the Effective Date, the following statements shall be true and the Agent shall have received a certificate signed by its Secretary or any Assistant Secretarya Responsible Officer, dated the Effective Date Date, stating that:
(the statements made i) The representations and warranties contained in which certificate shall be Section 4.01 are true and correct on and as of the Effective Date), certifying as to and
(Aii) No event has occurred and is continuing that constitutes a Default or an Event of Default.
(d) All accrued fees and reasonable and documented out-of-pocket expenses of the absence Joint Lead Arrangers shall have been paid (including the reasonable and documented fees and expenses of any amendments counsel to the charter Joint Lead Arrangers for which invoices have been submitted).
(i) The Borrower shall have delivered the documentation, certifications and other information to the Joint Lead Arrangers and the Banks that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act, at least three (3) Business Days prior to the Effective Date, to the extent such documentation or other formation documentinformation is requested at least ten (10) days prior to the Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, as the case may beBorrower shall have delivered a Beneficial Ownership Certification to the Joint Lead Arrangers and the Banks at least three (3) Business Days prior to the Effective Date, of such Loan Party since to the date extent requested at least five (5) Business Days prior to the Effective Date.
(f) The Borrower shall have paid all accrued fees and reasonable and documented out-of-pocket expenses of the Secretary Agent (including reasonable and documented fees and expenses of State’s certificate referred to in Section 3.01(b)(ivcounsel for which invoices have been submitted), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b).
Appears in 1 contract
Conditions Precedent to Effectiveness. This The effectiveness of this Agreement shall become effective on and as the obligation of each Incremental Term-3 Lender to make its portion of the first Incremental Term-3 Loans shall be subject to the satisfaction of each of the following conditions precedent (the date (on which all such conditions are satisfied, the “Effective Date”); provided, however, that the issuance of the Incremental Term-3 Loans and the use of proceeds thereof set forth in Section 2 hereof shall be deemed to have been effectuated immediately prior to the effectiveness of the amendments set forth in Section 4:
(a) on which the The Administrative Agent shall have received counterparts of this Agreement duly executed executed, as applicable, by the Borrower and all each of the Banks Loan Parties, the Incremental Term-3 Lenders, the Requisite Lenders and the following additional conditions precedent Administrative Agent.
(b) No Default shall have been satisfied, except that Section 2.04(a) shall become effective exist as of the first date on which Effective Date before or after giving effect to the making of the Incremental Term-3 Loans.
(c) The Borrower shall deliver or cause to be delivered any documents as the Administrative Agent shall have received counterparts reasonably request, including, without limitation, a certificate, signed by a Financial Officer of this Agreement duly executed the Borrower as of the Effective Date, in form and substance satisfactory to the Administrative Agent, (i) certifying and attaching (A) the resolutions adopted by the Borrower and all board of directors (or equivalent governing body) of the Banks:Borrower approving or consenting to the Incremental Term-3 Loans and (B) calculations in reasonable detail demonstrating that, upon after giving pro forma effect to the Incremental Term-3 Loans, the Borrower would be in pro forma compliance with the Financial Covenants as of the end of the most recently ended Fiscal Quarter for which appropriate financial information is available, and (ii) certifying that, before and after giving effect to the Incremental Term-3 Loans, (A) the representations and warranties contained in Article III of the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date and (B) no Default exists.
(ad) The Borrower shall have notified deliver or cause to be delivered customary legal opinions as to such matters as the Administrative Agent in writing as to the proposed Effective Dateshall reasonably request.
(be) The Administrative Agent shall have received on or before the Effective Date the following, a duly executed Note for each dated such day, in form and substance reasonably satisfactory Incremental Term-3 Lender that has requested a Note.
(f) The Borrower shall have delivered (i) an irrevocable Borrowing Request with respect to the Incremental Term-3 Loans and (ii) an irrevocable Notice of Prepayment with respect to the outstanding amount of the Initial Term-1 Loans.
(g) The Administrative Agent and each Bank:
(i) The Notes duly executed by the Borrower to Arranger shall have been paid or reimbursed for all fees and out-of-pocket charges and other expenses incurred in connection with this Agreement, including, without limitation, the order reasonable fees and disbursements of counsel for the Banks to the extent requested by any Bank pursuant to Section 2.19Administrative Agent.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body of each Loan Party approving each Loan Document to which it is a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(v) A certificate of each Loan Party signed on behalf of such Loan Party by 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 or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)
Appears in 1 contract
Samples: Incremental Facility Agreement (Consolidated Communications Holdings, Inc.)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of On or before the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by hereof, the Borrower and all of shall deliver to the Banks and Agent the following additional conditions precedent shall have been satisfieddocuments, except that Section 2.04(a) shall become effective as of properly executed and in form and content acceptable to the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified a Note, substantially in the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the followingform of Exhibit A, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each Bank:
(i) The Notes duly executed by the Borrower to the order of the applicable Banks (to the extent requested by any such Bank pursuant to Section 2.192.4), at least three (3) Business Days prior to the Execution Date.
(i) a certified copy of resolutions or similar authorizing documentation of the governing body of each of the Borrower and the Guarantor authorizing the execution and delivery of Loan Documents to which such Person is a party.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies a certificate of an officer of the resolutions Borrower and a certificate of the Governing Body corporate secretary of each the Guarantor, each, as to the incumbency and signatures of the officers of such Person signing the Loan Party approving each Loan Document Documents to which it is a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(ivi) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct certified copy of the charter or other formation document, as certificate of incorporation and bylaws of each of the case may be, Borrower and the Guarantor.
(ii) Certificates of such Loan Party and each amendment thereto on file in such Good Standing issued by the Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction Delaware in respect of its organizationeach of the Borrower and the Guarantor, each, dated not more than 30 days prior to the date hereof.
(vd) A certificate an opinion of counsel to the Borrower and the Guarantor, opining as to the due authorization, execution, delivery and enforceability of, in the case of the Borrower, this Agreement, and, in the case of the Guarantor, the Guaranty, and such other customary matters as the Agent may reasonably require.
(e) at least three (3) Business Days prior to the Execution Date, all documentation and other information regarding the Borrower and the Guarantor requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing of the Borrower or the Guarantor at least ten (10) Business Days prior to the Execution Date.
(f) at least five days prior to the Execution Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall deliver a Beneficial Ownership Certification.
(g) the Agent shall have received all fees and other amounts due and payable on or prior to the Execution Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. For purposes of determining compliance with the conditions of this Section 6.1, each Loan Party signed on behalf of such Loan Party by its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate Bank shall be true on and as deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Banks unless an officer of the Effective Date), certifying as to (A) Agent responsible for the absence of any amendments transactions contemplated by this Agreement shall have received notice from such Bank prior to the charter or other formation documentdate hereof, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)specifying its objection thereto.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective "Availability Date”") on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a2.04, Section 2.06 and Section 5.01(i) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Availability Date, and the Availability Date shall occur no later than June 30, 2004.
(b) Each of the Co-Lead Arrangers shall be reasonably satisfied that there has been no material adverse change since August 18, 2003 (which shall not be deemed to refer to the contemplated restructurings disclosed to the Co-Lead Arrangers prior to such date) in either (i) the corporate and legal structure and capitalization of the Borrower and its material Subsidiaries, including, without limitation, the charters and bylaws of each of the Borrower and each of its material Subsidiaries and each agreement or instrument relating thereto or (ii) the projected financial condition of the Borrower and its Subsidiaries on a consolidated basis following the Order Entry.
(c) The Administrative Agent shall have received on or before the Effective Availability Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and (except for the Notes) in sufficient copies for each Bank:
(i) The Notes duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.192.17.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body Board of each Loan Party Directors of the Borrower approving each Loan Document to which it the Borrower is or is to be a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan DocumentDocument to which the Borrower is or is to be a party.
(iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign each Loan Document to which the Borrower is or is to be a party and the other documents to be delivered by the Borrower hereunder.
(iv) A copy favorable opinion of a certificate Xxxxx X. Xxxxxxxxx, Assistant Secretary and Assistant General Counsel for the Borrower, in substantially the form of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationExhibit C-1 hereto.
(v) A certificate favorable opinion of each Loan Party signed on behalf Xxxxx Xxxxx LLP, counsel for the Borrower, in substantially the form of such Loan Party by its Secretary or any Assistant SecretaryExhibit C-2 hereto.
(vi) A solvency opinion of Xxxxxxxx Xxxxx Xxxxxx & Zukin in form and substance satisfactory to the Co-Lead Arrangers.
(vii) A favorable opinion of Shearman & Sterling, dated counsel for the Effective Date Agent, in form and substance satisfactory to the Agent.
(d) Each of the statements made in which certificate Co-Lead Arrangers shall be true satisfied that the investigation of the Borrower by the Securities and Exchange Commission has been concluded or will be concluded without (i) giving rise to a Material Adverse Effect, including, without limitation, the obligation to restate prior reported earnings or (ii) adversely affecting the Borrower's ability to access the capital markets in the reasonable judgment of any of the Co-Lead Arrangers.
(e) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that (i) could reasonably be expected to have a Material Adverse Effect other than the Disclosed Litigation or (ii) purports to affect the legality, validity or enforceability of the Borrower's obligations or the rights and remedies of the Banks relating to the Agreement and the other Loan Documents, and except as set forth in Schedule 4.01(f) to this Agreement there shall have been no material adverse change in the status, or financial effect on the Borrower and its subsidiaries on a consolidated basis, of the Disclosed Litigation from that described to the Agent prior to August 18, 2003.
(f) There shall have occurred no material adverse change (which term shall not be deemed to refer to the commencement of the Chapter 11 Cases) in the business, condition (financial or otherwise), operations, performance, properties or prospects of the Borrower and its subsidiaries, on a consolidated basis, since December 31, 2002, except as disclosed in the June 2003 10-Q and except for the accounting charges to be taken by the Borrower directly in connection with the Settlement Payments and except as set forth in Schedule 4.01(f) to this Agreement, and the Agent shall have received a certificate signed by a Responsible Officer of the Company stating that the condition in this Section 3.01(f) has been satisfied as of the Effective Date).
(g) Each of the Co-Lead Arrangers shall be satisfied that the Borrower and its subsidiaries are not subject to material contractual or other restrictions that would be violated by the Transaction, certifying including the incurrence of indebtedness under this Agreement, the Master LC Facility Agreement and the Revolving Credit Agreement, the granting of guarantees and collateral and the payment of dividends by subsidiaries.
(h) The Master LC Facility Agreement shall be effective unless terminated in accordance with its terms.
(i) The Revolving Credit Agreement shall be effective in accordance with its terms.
(j) Except as to otherwise permitted by the Loan Documents, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (A) without the absence imposition of any amendments conditions that are not reasonably acceptable to the charter Co-Lead Arrangers) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Co-Lead Arrangers that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(k) The Plan of Reorganization shall have been confirmed, including without limitation the economic and other formation documentterms of the settlement contemplated thereby, as without any material changes not approved by each of the case may beCo-Lead Arrangers.
(l) A final, non-appealable order reasonably satisfactory to the Co-Lead Arrangers shall have been entered in the Chapter 11 Cases approving the establishment of such Loan Party since one or more trusts pursuant to Section 524(g) of the Bankruptcy Code in order to resolve the present asbestos claims and future demands against any of the Borrower's subsidiaries identified on Schedule 4.01(h) hereto, arising from exposure to asbestos and/or asbestos-related products prior to the date of entry of such order, which order (i) enjoins the Secretary assertion of State’s certificate referred to in Section 3.01(b)(iv)such asbestos claims against the Borrower and such subsidiaries, (Bii) a true contains an injunction which is reasonably satisfactory in scope, nature and correct copy extent to each of the bylawsCo-Lead Arrangers and (iii) incorporates the terms of the Plan of Reorganization.
(m) A final, limited liability company agreement non-appealable order reasonably satisfactory to each of the Co-Lead Arrangers shall have been entered in the Chapter 11 Cases approving the establishment of one or partnership agreementmore trusts pursuant to Section 105(a) of the Bankruptcy Code in order to resolve the present silica claims and future demands against any of the Borrower's subsidiaries identified on Schedule 4.01(h) hereto, as arising from exposure to silica and/or silica related products prior to the case may be, date of entry of such Loan Party as order, which order (i) enjoins the assertion of such silica claims against the Borrower and such subsidiaries, (ii) contains an injunction which is reasonably satisfactory in effect on scope, nature and extent to each of the date on which Co-Lead Arrangers and (iii) incorporates the resolutions referred to in Section 3.01(b)terms of the
Appears in 1 contract
Samples: Senior Unsecured Credit Facility Agreement (Halliburton Co)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date on or before March 31, 2005 (the “"Effective Date”") on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified paid all fees and expenses of the Administrative Agent in writing and the Lenders payable hereunder and accrued as of the Effective Date (including the accrued fees and expenses of counsel to the proposed Effective DateAdministrative Agent).
(b) On the Effective Date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct in all material respects on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and (except for the Notes) in sufficient copies for each BankLender:
(i) The Notes duly executed by the Borrower payable to the order of each of the Banks Lenders, in a principal amount equal to the extent requested by any Bank pursuant to Section 2.19each such Lender's Commitment.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions txx xxxolutions of the Governing Body Board of Directors (or committee thereof) of the Borrower and each other Loan Party approving each Loan Document this Agreement, the Notes and the Guaranty to which it is or is to be a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvalsand other third party approvals and consents, if any, with respect to this Agreement, the Notes and the Guaranty.
(iii) A certificate of the Secretary or an Assistant Secretary of each Loan DocumentParty certifying the names and true signatures of the officers of such Loan Party authorized to sign the Loan Documents to which it is a party and the other documents to be delivered hereunder.
(iv) A copy guaranty in substantially the form of a certificate of Exhibit E (as amended, supplemented or otherwise modified from time to time, the Secretary of State of the jurisdiction of incorporation of "Guaranty"), duly executed by each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationGuarantor.
(v) A certificate An opinion of each Alston & Bird, LLP, counsel for the Loan Party signed on behalf Parties, in subsxxxxxxlly the form of Exhibit F attached hereto and to such Loan Party by its Secretary or other matters as any Assistant SecretaryLender through the Administrative Agent may reasonably request.
(vi) An opinion of Linklaters, English counsel for the Borrower, in substantially the form of Exhibit G attached hereto and to such other matters as any Lender through the Administrative Agent may reasonably request.
(vii) An acceptance of the appointment of the Process Agent (as such term is defined in Section 8.12).
(d) The termination of the commitments of the lenders and the payment in full of all amounts outstanding under (i) the Five Year Credit Agreement dated the Effective Date (the statements made in which certificate shall be true on and as of June 18, 2001 among the Effective Date)Borrower, certifying the lenders party from time to time thereto, Citibank, N.A., Bank of America, N.A. and HSBC Bank PLC, as to co-syndication agents, and Bank of America, N.A. as funding agent, as thereafter amended, and (Aii) the absence 364-Day Credit Agreement dated as of any amendments June 18, 2001 among the Borrower, the lenders party from time to the charter or other formation documenttime thereto, Citibank, N.A., Bank of America, N.A. and HSBC Bank PLC, as the case may beco-syndication agents, and Bank of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv)America, (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreementN.A. as funding agent, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)thereafter amended.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of On or before the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by hereof, the Borrower and all of shall deliver to the Banks and Agent the following additional conditions precedent shall have been satisfieddocuments, except that Section 2.04(a) shall become effective as of properly executed and in form and content acceptable to the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified a Note, substantially in the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the followingform of Exhibit A, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each Bank:
(i) The Notes duly executed by the Borrower to the order of the applicable Banks (to the extent requested by any such Bank pursuant to Section 2.192.4), at least three (3) Business Days prior to the Execution Date.
(i) a certified copy of resolutions or similar authorizing documentation of the governing body of each of the Borrower and the Guarantor authorizing the execution and delivery of Loan Documents to which such Person is a party.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies a certificate of an officer of the resolutions Borrower and a certificate of the Governing Body corporate secretary of each the Guarantor, each, as to the incumbency and signatures of the officers of such Person signing the Loan Party approving each Loan Document Documents to which it is a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(ivi) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct certified copy of the charter or other formation document, as certificate of incorporation and bylaws of each of the case may be, Borrower and the Guarantor.
(ii) Certificates of such Loan Party and each amendment thereto on file in such Good Standing issued by the Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction Delaware in respect of its organizationeach of the Borrower and the Guarantor, each, dated not more than 30 days prior to the date hereof.
(vd) A certificate an opinion of counsel to the Borrower and the Guarantor, opining as to the due authorization, execution, delivery and enforceability of, in the case of the Borrower, this Agreement, and, in the case of the Guarantor, the Guaranty, and such other customary matters as the Agent may reasonably require.
(e) at least three (3) Business Days prior to the Execution Date, all documentation and other information regarding the Borrower and the Guarantor requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing of the Borrower or the Guarantor at least ten (10) Business Days prior to the Execution Date.
(f) at least five days prior to the Execution Date, if the Borrower qualifies as a "legal entity customer" under the Beneficial Ownership Regulation, it shall deliver a Beneficial Ownership Certification.
(g) the Agent shall have received all fees and other amounts due and payable on or prior to the Execution Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. For purposes of determining compliance with the conditions of this Section 6.1, each Loan Party signed on behalf of such Loan Party by its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate Bank shall be true on and as deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Banks unless an officer of the Effective Date), certifying as to (A) Agent responsible for the absence of any amendments transactions contemplated by this Agreement shall have received notice from such Bank prior to the charter or other formation documentdate hereof, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)specifying its objection thereto.
Appears in 1 contract
Conditions Precedent to Effectiveness. This The effectiveness of this Agreement shall become effective on and as of the first date (Signing Date is subject to the “Effective Date”) on which condition precedent that the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each BankAgent:
(ia) The This Agreement and the Fee Letters, duly executed and delivered by the Borrower and each of the other parties hereto or thereto.
(b) Notes duly executed by the Borrower to the order in favor of the Banks to the extent requested by any Bank pursuant to Section 2.19each Lender requesting Notes.
(iic) The Guarantee duly executed Copies, certified by each Subsidiary Guarantor.
the Secretary or an Assistant Secretary, of (iiix) Certified copies the certificate of incorporation and by-laws of the Borrower, (y) the resolutions of the Governing Body board of each Loan Party approving each Loan Document to which it is a partydirectors of the Borrower authorizing this Agreement and the transactions contemplated hereby (including the Transactions, save for part (iii) of that definition), and of (z) all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Documentthis Agreement.
(ivd) A copy of a certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the documents to be delivered hereunder.
(e) A certificate from the Secretary of State of the jurisdiction State of incorporation of each Loan Party, Delaware dated a date reasonably near close to the Effective Date certifying (A) date hereof as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under of and charter documents filed by the laws of the State of the jurisdiction of its organizationBorrower.
(vf) A favorable opinion of Ropes and Xxxx LLP, special New York counsel to the Borrower, and a favorable opinion of the Group Counsel, Corporate of the Borrower.
(g) A certificate of each Loan Party signed a Responsible Officer of the Borrower certifying that (i) no Default or Event of Default shall have occurred on behalf the Signing Date immediately following the effectiveness of such Loan Party by its Secretary or any Assistant Secretary, dated this Agreement and (ii) the Effective Date (the statements made representations and warranties contained in which certificate shall be Section 4.01 are true and correct on and as of the Effective DateSigning Date as if made on and as of such date.
(h) Evidence that all consents, licenses, permits and governmental and third party consents and approvals required for the due making and performance by the Borrower of this Agreement have been obtained and remain in full force and effect.
(i) Evidence of payment by the Borrower of all documented fees and expenses of the Lenders, the Administrative Agent and the Arranger and of the expenses then due and payable under the Fee Letters or under Section 8.04, including the reasonable fees and disbursements of counsel to the Administrative Agent, in connection with the negotiation, preparation, execution and delivery of this Agreement and the making of the Loans.
(j) All documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act (to the extent not previously delivered).
(k) The Administrative Agent shall have received a copy, certifying as to certified by a Responsible Officer of the Company, of (Ax) a fully executed Scheme Implementation Agreement and (y) the absence of any amendments Press Release, announcing the Borrower’s or its Affiliates firm intention to make an offer or effect the Scheme and setting forth the material terms and conditions thereof.
(l) Reasonably satisfactory evidence from the Escrow Agent to the charter or other formation documentBorrower that the Escrow Amount has been appropriately deposited in the Escrow Account, as and satisfactory evidence from the case may beBorrower that such amount is freely available for, and is sufficient, together with the proceeds of such Loan Party since Loans, for the date purposes of funding the Acquisition (including, for the avoidance of doubt, the Closing Date Contribution). The Administrative Agent shall promptly notify Borrower and its financial advisor and the Lenders of the Secretary of State’s certificate referred to in Section 3.01(b)(iv)Signing Date, (B) a true and correct copy such notice shall be conclusive and binding evidence of the bylaws, limited liability company agreement or partnership agreement, as satisfaction of the case may be, foregoing conditions and the effectiveness of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)this Agreement.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as The effectiveness of this agreement, the obligation of the first date (Revolving Credit Lenders to make Revolving Credit Advance up to the “Effective Date”) on which Revolving Credit Availability Amount then in effect, the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all obligation of the Initial Swing Line Lender to make the initial Swing Line Advance and obligation of the Initial Issuing Banks and to issue the initial Letter of Credit are, in each case, subject to the satisfaction of the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:(other than those conditions specified in Schedule 5.01(n)(iii)):
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such dayday (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each BankInitial Lender:
(i) The Notes duly executed by the Borrower payable to the order of the Banks Lenders to the extent requested by any Bank pursuant to in accordance with Section 2.192.16(a).
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body Boards of Directors of each Loan Party of the Borrower and each Guarantor approving each Loan Document to which it is a partythe execution and delivery of this Agreement, and of all documents evidencing other necessary corporate or organizational constitutive action and, if any, governmental and governmental approvalsother third party approvals and consents, if any, with respect to this Agreement and each other Loan DocumentDocument other than any approval required and granted pursuant to the Interim Order.
(iviii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a certificate of date on or after November 15, 2005) by the Secretary of State of the jurisdiction of its incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation documentorganization, as the case may be, of such Loan Party thereof as being a true and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationcorrect copy thereof.
(viv) A certificate of each Loan Party of the Borrower and each Material Guarantor signed on behalf of the Borrower and such Loan Party Guarantor, respectively, 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 accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any amendments to the charter or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), changes thereto; (B) a true the accuracy and correct copy completeness of the bylaws, limited liability company agreement bylaws of the Borrower or partnership agreement, as the case may be, of such Loan Party Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(b3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor; (D) the accuracy in all material respects of the representations and warranties made by the Borrower or such Guarantor in the Loan Documents to which it is or is to be a party as though made on and as of the Effective Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date and to the application of proceeds, if any, therefrom; and (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Effective Date or the application of proceeds, if any, therefrom, that would constitute a Default.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Material Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule V hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Intellectual Property Security Agreement"), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Intellectual Property Security Agreement have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A Thirteen Week Forecast detailing the Borrower's anticipated cash receipts and disbursements reasonably satisfactory in form and substance to the Initial Lenders.
(ix) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(x) A favorable opinion of (A) Xxxxx Day, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Initial Lenders may reasonably request, (B) Hunton & Xxxxxxxx LLP, Virginia and Delaware counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto, and addressing such other matters as the Initial Lenders may reasonably request and (C) Xxxxxxxx, Loop & Xxxxxxxx, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-3 hereto and addressing such other matters as the Initial Lenders may reasonably request.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Dana Corp)
Conditions Precedent to Effectiveness. This Agreement and the obligations of the Lenders to make Loans shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that or waived in accordance with Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks9.01:
(a) The the Borrower shall have notified each Lender and the Administrative Agent in writing as to the proposed Effective Date.
(b) On the Effective Date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) the representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) no event has occurred and is continuing on and as of the Effective Date that constitutes a Default or Event of Default.
(c) [reserved.].
(d) [reserved.].
(e) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each BankAgent:
(i) The Notes duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.19.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of (x) the resolutions of the Governing Body Board of Directors of Mondelēz and (y)
(1) a copy of the constitutional documents of the Borrower and (2) a copy of a resolution of the board of directors of the Borrower approving the terms of, and the transactions contemplated by, this Agreement, in each Loan Party case approving each Loan Document to which it is a partythis Agreement, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to this Agreement.
(ii) (1) A certificate of the Secretary or an Assistant Secretary of Mondelēz certifying the names and true signatures of the officers of Mondelēz authorized to sign this Agreement and the other documents to be delivered hereunder and (2) a certificate of the managing director of the Borrower (x) attaching a specimen of the signature of each Loan Documentperson authorised to sign this Agreement and the other documents to be delivered hereunder on behalf of the Borrower and (y) certifying that each copy document relating to it specified in this Section 3.01 is correct, complete and in full force and affect and has not been amended or superseded as at the date of this Agreement.
(iii) Favorable opinions of (A) Xxxxxx, Xxxx & Xxxxxxxx LLP, special New York counsel to Mondelēz and the Borrower, substantially in the form of Exhibit E-1 hereto, (B) Hunton & Xxxxxxxx LLP, special Virginia counsel to Mondelēz, substantially in the form of Exhibit E-2 hereto, (C) internal counsel for Mondelēz, substantially in the form of Exhibit E-3 hereto and (D) Loyens & Loeff N.V., special Netherlands counsel to the Borrower, substantially in the form of Exhibit E-4 hereto.
(iv) A copy of a certificate of the Secretary chief financial officer or treasurer of State Mondelēz certifying that as of the jurisdiction of incorporation of each Loan PartyDecember 31, dated reasonably near the Effective Date certifying 2015, (A) as the aggregate amount of Debt, payment of which is secured by any Lien referred to a true and correct copy in clause (iii) of the charter or other formation documentSection 5.02(a), as the case may bedoes not exceed $400,000,000, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that the aggregate amount of Debt, payment of which is secured by any Lien referred to in clause (1iv) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s officeof Section 5.02(a), and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationdoes not exceed $200,000,000.
(vf) A certificate This Agreement shall have been executed by each Obligor and the Administrative Agent and the Administrative Agent shall have been notified by each Initial Lender that such Initial Lender has executed this Agreement.
(g) The Agents and the Lenders shall have received payment in full in cash of each Loan Party signed on behalf all fees and expenses due to them pursuant to the Fee Letter (including the reasonable fees and out-of-pocket disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP and Xxxxx Dutilh New York P.C. as counsel to the Administrative Agent).
(h) The Administrative Agent shall have received evidence that, prior to or contemporaneously with the Effective Date, the equity interests of Kraft Foods International Biscuit Holdings LLC shall have been contributed to the Borrower.
(i) The Administrative Agent and the Lenders shall have received from the Borrower and Mondelēz, in form and substance satisfactory to the Administrative Agent or such Loan Party Lenders, as applicable, all documentation and other information required by its Secretary or any Assistant Secretary, dated regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations that has been reasonably requested by the Administrative Agent and the Lenders. The Administrative Agent shall notify Borrower and the Initial Lenders of the date which is the Effective Date (upon satisfaction or waiver of all of the statements made conditions precedent set forth in which certificate this Section 3.01. For purposes of determining compliance with the conditions specified in this Section 3.01, each Lender shall be true on and as deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Lender prior to the date that the Borrower, by notice to the Lenders, designates as the proposed Effective Date), certifying as to (A) the absence of any amendments to the charter or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)specifying its objection thereto.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower effectiveness of this Agreement is subject to the satisfaction of the following conditions:
(i) Each Transaction Document (other than the Policy, the Prospectus and the Independent Verifier Agreement) shall be duly authorized, executed and delivered by each of the parties thereto and be in full force and effect and executed counterparts of each such Transaction Document shall have notified been delivered to the Administrative Agent in writing Insurer.
(ii) The Insurer shall have received (A) a certificate of the Secretary or Assistant Secretary of the Adviser, dated as of the Effective Date, as to the proposed incumbency and signature of the officers or other employees of the Adviser authorized to sign this Agreement on behalf of the Adviser and certifying that attached thereto are true, complete and correct copies of its constituent documents and resolutions duly adopted by the Adviser authorizing the execution and delivery of this Agreement, and (B) a good standing certificate from the Delaware Secretary of State regarding the Adviser.
(iii) The Insurer shall have received (A) a certificate of the Secretary or Assistant Secretary of the Trust, dated as of the Effective Date, as to the incumbency and signature of the officers or other employees of the Trust authorized to sign this Agreement on behalf of the Trust, and certifying that attached thereto are true, complete and correct copies of its (x) resolutions duly adopted by the Board of Trustees of the Trust authorizing the execution and delivery of this Agreement and (y) Declaration of Trust as in full force and effect on the Effective Date, and (B) a copy of the Certificate of Trust certified as of a recent date by the Secretary of State of the State of Delaware.
(iv) The Adviser and the Fund shall have received a certificate of the Secretary or Assistant Secretary of the Insurer, dated as of the Effective Date, as to the incumbency and signature of the officers or employees of the Insurer authorized to sign this Agreement on behalf of the Insurer.
(v) The Insurer shall have received a certificate of the Secretary or Assistant Secretary of the Trust, dated as of the Effective Date, certifying that (A) amendments to the Trust's registration statement on Form N-1A with respect to each Class of Shares of the Fund (1) have been prepared by the Trust in conformity with the requirements of the Acts and the rules and regulations of the Commission thereunder, and (2) have been filed with the Commission under the Acts, (B) the most recent such amendment has become effective or has been declared effective by the Commission, (C) true and complete copies of such registration statement as amended with respect to the Fund to the Effective Date are attached thereto (the "REGISTRATION STATEMENT"), excluding any exhibits thereto, (D) the Commission has not issued any order preventing or suspending the use of any preliminary prospectus relating to any Class of Shares and the Trust has not received any notice from the Commission pursuant to Section 8(e) of the Investment Company Act with respect to the Registration Statement, and (E) as to information other than the Ambac Information, the Registration Statement and the Prospectus with respect to each Class of Shares of the Fund do not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(vi) The Insurer shall have received from Xxxx and Xxxx LLP, counsel to the Fund and the Adviser, legal opinions, in form and substance satisfactory to the Insurer, dated the Effective Date.
(vii) The Fund shall have received from Xxxxx Xxxxx, Managing Director and General Counsel of the Insurer, legal opinions, in form and substance satisfactory to the Adviser, dated the Effective Date.
(viii) All proceedings, documents, instruments and other legal matters in connection with the transactions contemplated by this Agreement and the other Transaction Documents shall be satisfactory in form and substance to the Insurer, and the Insurer shall have received such other documents in respect of any aspect or consequence of the transactions contemplated hereby or thereby as it shall reasonably request.
(b) The Administrative Agent shall have received on or before obligation of the Effective Date Insurer to issue the following, each dated such day, in form and substance reasonably satisfactory Policy is subject to the Administrative Agent and each Banksatisfaction of the following conditions on the Inception Date:
(i) The Notes duly executed Each of the representations and warranties made by the Borrower Adviser and the Fund in this Agreement shall be true and correct in all material respects on and as of such date, and the Insurer shall have received a certification from each of the Adviser and the Fund to such effect as to the order of the Banks to the extent requested representations and warranties made by any Bank pursuant to Section 2.19it.
(ii) The Guarantee duly executed by each Subsidiary GuarantorNo Trigger Event shall have occurred.
(iii) Certified copies No statute, rule, regulation or order shall have been enacted, entered or deemed applicable by any Government Authority which would make the transactions contemplated by any of the resolutions of Transaction Documents illegal or otherwise prevent the Governing Body of each Loan Party approving each Loan Document to which it is a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Documentconsummation thereof.
(iv) A copy of a certificate No suit, action or other proceeding, investigation, or injunction or final judgment relating thereto, shall be pending or threatened before any court or governmental agency in which it is sought to restrain or prohibit or to obtain damages or other relief in connection with any of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationTransaction Documents.
(v) A certificate of each Loan Party signed on behalf of such Loan Party by its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate There shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments not have been an Adverse Effect with respect to the charter Adviser or other formation document, as the case may be, of such Loan Party Fund since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv)this Agreement.
(vi) The Trust shall have (a) retained an Independent Verifier as contemplated by SECTION 10.01, (Bb) prepared a true form of Independent Verification Report covering such matters as the Adviser and correct the Insurer have agreed as contemplated by SECTION 10.02, (c) delivered to the Insurer a fully executed copy of the bylawsIndependent Verifier Agreement and (d) delivered to the Insurer a certificate of an officer of the Adviser attesting to the due authorization, limited liability company agreement or partnership agreementexecution and delivery of the Independent Verifier Agreement by the Adviser.
(vii) On the Inception Date, the Guarantee Amount shall not exceed $500,000,000 (the "AGREED AMOUNT"). If, during the Offering Period, the Fund expects to receive subscriptions for its Shares which could result in such Guarantee Amount exceeding the Agreed Amount, then the Fund shall consult with the Insurer. If the Insurer agrees to increase such Agreed Amount in its sole discretion, this Agreement will be amended accordingly.
(viii) The form of Daily Gap Risk Report, the form of Daily Portfolio Requirements Report and the form of Weekly Report shall have been agreed by the parties hereto prior to the Inception Date and shall be in form and substance satisfactory to the Insurer. When each such form of Report has been so agreed, a copy thereof shall be attached as the appropriate Schedule hereto.
(ix) The Insurer shall have received a description of the Fund's policy for calculating month-end average net assets, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)contemplated by SECTION 2.04.
Appears in 1 contract
Samples: Financial Guarantee Agreement (Pioneer Protected Principal Trust)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:.
(a) The Borrower shall have notified Agent and the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent Lenders shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each BankLenders:
(i) The Notes duly counterparts hereof signed by each of the parties hereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Borrower to the order Agent of the Banks to the extent requested telecopy, electronic communication or other written confirmation from such party of execution of a counterpart hereof by any Bank pursuant to Section 2.19.such party);
(ii) The Guarantee duly executed by each Subsidiary Guarantor.the Notes payable to the Lenders, respectively, requesting same;
(iii) Certified an opinion or opinions of counsel for the Borrower in form and substance reasonably satisfactory to the Lenders;
(iv) certified copies of the resolutions of the Governing Body Board of each Loan Party Directors of the Borrower approving each Loan Document to which it is a partythis Agreement and the Notes, and of all documents evidencing other necessary corporate or organizational other similar action and governmental approvals, if any, with respect to each Loan Document.this Agreement and the Notes, as applicable;
(ivv) A copy a certificate signed by the Chief Financial Officer or the Treasurer of the Borrower, dated the Effective Date, to the effect set forth in clauses (a) and (b) of Section 3.02;
(vi) a certificate of the Secretary or an Assistant Secretary of State each of the jurisdiction of incorporation of each Loan Party, dated reasonably near Borrower certifying the Effective Date certifying (A) as to a names and true and correct copy signatures of the charter or other formation documentofficers of the Borrower authorized to sign this Agreement and the Notes, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s officeapplicable, and the other documents to be delivered hereunder; and
(2vii) such Loan Party is duly organized and in good standing or presently subsisting under all documents the laws Lenders may have reasonably requested prior to the date hereof relating to the existence of the State Borrower, the corporate authority for and the validity of this Agreement and the jurisdiction of its organizationNotes, and any other matters relevant hereto.
(vb) A certificate of each Loan Party signed on behalf of such Loan Party by its Secretary or any Assistant SecretaryThe Lenders shall have received, 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 extent requested, all documentation and other information reasonably requested by the Lenders or other formation documentthe Agent under applicable “know your customer” and anti-money laundering rules and regulations, as including the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)Patriot Act.
Appears in 1 contract
Samples: Subordinated Delayed Draw Credit Agreement (Gencorp Inc)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts a counterpart of this Agreement duly executed by the Borrower and a counterpart of, or a copy of a signature page to, this Agreement duly executed by all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of (or, in the case of any Bank, a copy of a signature page to) this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each BankAgent:
(i) The Notes duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.192.18.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body Board of each Loan Party Directors of the Borrower approving each Loan Document to which it is a partyDocument, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iii) A certificate of the secretary or an assistant secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign each Loan Document and the other documents to be delivered by the Borrower hereunder.
(iv) A copy certificate of a certificate Responsible Officer stating the respective ratings by each of S&P and Xxxxx’x of the Secretary of State senior unsecured long-term debt of the jurisdiction of incorporation of each Loan Party, dated reasonably near Borrower as in effect on the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationDate.
(v) A certificate of each Loan Party signed on behalf a Responsible Officer stating that (A) all “Revolving Credit Commitments” (as defined in the Existing Agreement) of the “Banks” (as defined in the Existing Agreement) have been terminated, (B) either (1) no letter of credit is outstanding thereunder or (2) any such letters of credit are deemed to be Existing Letters of Credit under this Agreement, (C) no “Advances” (as defined in the Existing Agreement) are outstanding under the Existing Agreement, and (D) all fees and other amounts known by the Borrower to be payable under the Existing Agreement have been paid in full. Each Bank that is a party to the Existing Agreement waives the requirement of Section 2.05 of the Existing Agreement that notice of such Loan Party termination be given at least three (3) Business Days prior to such termination.
(vi) A favorable opinion of Xxxxx X. Xxxxxxxxx, Vice President – Public Law and Assistant Secretary for the Borrower.
(vii) A favorable opinion of Xxxxx Xxxxx L.L.P., counsel for the Borrower.
(c) On the Effective Date, the following statements shall be true and the Agent shall have received a certificate signed by its Secretary or any Assistant Secretarya Responsible Officer, dated the Effective Date Date, stating that:
(the statements made i) The representations and warranties contained in which certificate shall be Section 4.01 are true and correct in all material respects (or, with respect to any representation or warranty qualified by materiality or a material adverse change or material adverse effect standard, in all respects) on and as aas of the Effective Date), certifying as to and
(Aii) No event has occurred and is continuing that constitutes a Default or an Event of Default.
(d) All accrued fees and reasonable and documented out-of-pocket expenses of the absence Joint Lead Arrangers shall have been paid (including the reasonable and documented fees and expenses of any amendments counsel to the charter Joint Lead Arrangers for which invoices have been submitted to the Borrower at least two (2) Business Days prior to the Effective Date).
(i) The Borrower shall have delivered the documentation, certifications and other information to the Joint Lead Arrangers and the Banks that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act, at least three (3) Business Days prior to the Effective Date, to the extent such documentation or other formation documentinformation is requested at least ten (10) days prior to the Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, as the case may beBorrower shall have delivered a Beneficial Ownership Certification to the Joint Lead Arrangers and the Banks at least three (3) Business Days prior to the Effective Date, of such Loan Party since to the date extent requested at least five (5) Business Days prior to the Effective Date.
(f) The Borrower shall have paid all accrued fees and reasonable and documented out-of-pocket expenses of the Secretary Agent (including reasonable and documented fees and expenses of State’s certificate referred counsel for which invoices have been submitted to in Section 3.01(b)(ivthe Borrower at least two (2) Business Days prior to the Effective Date), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b).
Appears in 1 contract
Conditions Precedent to Effectiveness. This The effectiveness of this Agreement shall become effective on and as is subject to the satisfaction of the first following conditions (the date (such conditions are satisfied, or waived in accordance with Section 9.02, the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:):
(a) The Borrower Administrative Agent (or its counsel) shall have notified received from each party hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or electronic mail transmission in writing as to the proposed Effective Dateaccordance with Section 9.01(b) of a signed signature page of this Agreement) that such party signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received from the Borrowers (A) either (i) a counterpart of the Syndication Letter signed on behalf of the Borrowers or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or electronic mail transmission in accordance with Section 9.01(b) of a signed signature page of the Syndication Letter) that the Borrowers signed a counterpart of the Syndication Letter.
(c) The Administrative Agent (or its counsel) shall have received from each Borrower and each Parent Guarantor either (A) a counterpart of the Guaranty signed on behalf of such Borrower or such Parent Guarantor, as applicable or (B) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or electronic mail transmission in accordance with Section 9.01(b) of a signed signature page of the Guaranty) that each Borrower and each Parent Guarantor signed a counterpart of the Guaranty;
(d) The Administrative Agent shall have received a signed certificate of a Responsible Officer of the Borrower stating that (A) the representations and warranties set forth in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the Effective Date as if made on and as of such date (except where any representation and warranty is expressly made as of a specific earlier date, in which case such representation and warranty shall be true in all material respects as of any such earlier date) and except that any representation and warranty qualified by “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects and (B) no Default as of the Effective Date has occurred and is continuing as of the Effective Date.
(e) The Administrative Agent shall have received the executed legal opinions of (i) Xxxx Xxxxxxxx LLP, special New York counsel to the Borrowers and the Guarantors, (ii) CMS Xxxxxxx XxXxxxx, local counsel to the Borrowers and the Guarantors in the United Kingdom and (iii) Xxxxx Xxxxx, local counsel to the Borrowers and the Guarantors in Jersey, in each case, in form reasonably satisfactory to the Administrative Agent. The Borrowers hereby request such counsel to deliver such opinions.
(f) The Administrative Agent shall have received (i) a certificate of the Borrower dated as of the Effective Date, which shall (A) certify the resolutions of the board of directors, members or other body authorizing the execution, delivery and performance by each Loan Party of this Agreement and the other Loan Documents, (B) identify by name and title and bear the signatures of the officers of each Loan Party authorized to sign this Agreement and the other Loan Documents and (C) contain appropriate attachments, including the organization documents of each Loan Party certified, if applicable, by the relevant authority of the jurisdiction of organization of the such Loan Party and (ii) a good standing certificate (if relevant) as of a recent date for each Borrower and each Guarantor from its jurisdiction of organization.
(g) The Administrative Agent shall have received a certificate attesting to the Solvency of the Borrower and its Subsidiaries (taken as a whole) on the Effective Date, from a Financial Officer of the Borrower.
(h) To the extent reasonably requested in writing by the Lenders at least five Business Days prior to the Effective Date, the Lenders shall have received on or before prior to the Effective Date all documentation and other information in order to allow the followingLenders to comply with the USA PATRIOT Act, all “know-your-client”, anti-money laundering, and other similar checks required by the Lenders in relation to each dated of the Loan Parties.
(i) The Administrative Agent and the Arranger shall have received all fees and other amounts due and payable on or prior to the Effective Date pursuant to agreements entered into between Barclays and either Borrower in connection with the financing for the Acquisition, including, to the extent invoiced in reasonable detail at least two Business Days prior to the Effective Date, reimbursement or payment of all reasonable out-of-pocket legal fees and expenses of the Administrative Agent required to be reimbursed or paid by either Borrower hereunder or thereunder.
(j) The Administrative Agent shall have received the financial statements referenced in Section 3.04(a) and (b) above.
(k) The Administrative Agent (or its counsel) shall have received from each party thereto either (A) a counterpart of the Cash Consideration Account Agreement signed on behalf of such dayparty or (B) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or electronic mail transmission in accordance with Section 9.01(b) of a signed signature page of the Cash Consideration Account Agreement) that such party signed a counterpart of this Agreement.
(l) The Cash Consideration Account Amount shall be funded into the Cash Consideration Account in accordance with the terms of the Cash Consideration Account Agreement.
(m) The Administrative Agent shall have received a draft Offer Press Release or Scheme Press Release, as applicable, certified by a Responsible Officer of the Borrower and in form and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent and each Bank:
(i) The Notes duly executed by shall promptly notify the Borrower to and the order Lenders of the Banks to the extent requested by any Bank pursuant to Section 2.19.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body of each Loan Party approving each Loan Document to which it is a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(v) A certificate of each Loan Party signed on behalf of such Loan Party by its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as occurrence of the Effective Date), certifying as and such notice shall be conclusive and binding on all parties hereto. Without limiting the generality of the provisions of clause (e) of Article VIII, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to (A) have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the absence of any amendments Administrative Agent shall have received notice from such Lender, with a copy to the charter or other formation documentBorrower, as prior to the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)proposed Effective Date specifying its objection thereto.
Appears in 1 contract
Samples: Senior Bridge Credit Agreement (Delphi Automotive PLC)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts The effectiveness of this Agreement duly executed by is subject to the Borrower and all of the Banks and the following additional conditions condition precedent that Bank shall have been satisfiedreceived, except that Section 2.04(a) shall become effective in form and substance satisfactory to Bank, such documents, and completion of such other matters, as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the BanksBank may reasonably deem necessary or appropriate, including, without limitation:
(a) The Borrower shall have notified the Administrative Agent in writing as duly executed original signature pages to the proposed Effective Date.Loan Documents;
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each Bank:[Reserved];
(ic) The Notes duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.19.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body of each Loan Party approving each Loan Document to which it is Borrower’s Operating Documents and a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iv) A copy of a good standing certificate of Borrower certified by the Secretary of State of the State of Delaware, together with a certificate of foreign qualification from each jurisdiction in which the Borrower is qualified as such, in each case dated as of incorporation of each Loan Partya date no earlier than thirty (30) days prior to the Effective Date;
(d) duly executed original signature pages to the Secretary’s Certificate with completed Borrowing Resolutions for Borrower;
(e) [reserved];
(f) [reserved];
(g) [reserved];
(h) certified copies, dated reasonably near the Effective Date certifying (A) as to of a true and correct copy recent date, of the charter or other formation documentfinancing statement searches, as the case may beBank shall request, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and accompanied by written evidence (Bincluding any UCC termination statements) that (1) the Liens indicated in any such amendments are financing statements either constitute Permitted Liens or have been or, in connection with the only amendments to such Loan Party’s charter on file in such Secretary’s officeinitial Credit Extension, and (2) such Loan Party is duly organized and in good standing will be terminated or presently subsisting under the laws of the State of the jurisdiction of its organization.released;
(vi) A certificate the Perfection Certificate of each Loan Party signed on behalf Borrower, together with the duly executed original signature page thereto;
(j) a legal opinion of such Loan Party by Borrower’s counsel, in form and substance acceptable to Bank, in its Secretary or any Assistant Secretaryreasonable discretion, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date)Date together with the duly executed original signature thereto;
(k) evidence satisfactory to Bank that the insurance policies required by Section 6.7 hereof are in full force and effect, certifying as together with appropriate evidence showing lender loss payable and/or additional insured clauses and cancellation notice to Bank (Aor endorsements reflecting the same) the absence in favor of any amendments to the charter or other formation document, as the case may be, of such Loan Party since the date Bank; and
(l) payment of the Secretary of State’s certificate referred to fees and Bank Expenses then due as specified in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)2.4 hereof.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as upon satisfaction of the first date following conditions precedent (the “Effective Closing Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:):
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each BankAgent:
(i) The Notes duly An executed by the Borrower to the order counterpart of this Agreement signed on behalf of the Banks to Company, the extent requested by any Bank pursuant to Section 2.19.Guarantors, the Administrative Agent and each Lender;
(ii) The Guarantee To the extent requested pursuant to Section 2.11(a), a duly executed by Note of the Company, for the account of each Subsidiary Guarantor.requesting Lender;
(iii) Certified copies of the resolutions UCC, tax and judgment lien searches, or equivalent reports or searches, each of the Governing Body a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of each such financing statements and documents) that name certain identified Loan Parties as debtor and that are filed in those state and county jurisdictions in which such Loan Party approving each Loan Document is organized or maintains its principal place of business, none of which encumber the Collateral covered or intended to which it is a party, and of all documents evidencing be covered by the Collateral Documents (other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.than Permitted Liens),
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date Company certifying (A) as to a true and correct copy copies attached thereto of the charter resolutions of the Board of Directors of the Company authorizing and empowering certain officers of the Company to effect such borrowings as such officers may deem necessary or other formation documentdesirable for proper corporate purposes, as subject to the case may be, of such Loan Party and each amendment thereto on file limitations set forth in such Secretary of State’s office and resolutions, (B) that (1) such amendments are copies attached thereto of the only amendments to such Loan Party’s charter on file in such Secretary’s office, Certificate of Incorporation and (2) such Loan Party is duly organized and in good standing or presently subsisting under the by-laws of the State Company and (C) the names and true signatures of the jurisdiction officers of its organization.the Company authorized to sign this Agreement and the Notes and other documents to be executed and delivered by the Company hereunder;
(v) A certificate from the relevant Secretary of State dated a date reasonably close to the date hereofClosing Date as to the good standing of and organizational documents filed by each Loan Party signed on behalf Party;
(vi) A certificate of such Loan Party by its Secretary or any Assistant Secretarya duly authorized officer of the Company, dated the Effective Date Closing Date, certifying that as of such date, (A) the statements made representations and warranties contained in which certificate shall be true Section 6.01 are correct in all material respects on and as of the Effective Closing Date), certifying as to (A) the absence of any amendments to the charter or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy no Default or Event of Default as of the bylawsdate thereof has occurred and is continuing and (C) from the Chief Financial Officer, limited liability company agreement the Solvency of the Company on a consolidated basis both before and after giving effect to the transactions occurring on such date;
(vii) An opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, in a form reasonably satisfactory to the Administrative Agent;
(viii) Opinions of the local counsel to the Borrower identified on Schedule 5.01(a)(viii), in each case, in a form reasonably satisfactory to the Administrative Agent;
(ix) A Perfection Certificate, duly executed by each of the Loan Parties;
(x) The Security Agreement, duly executed by each of the Loan Parties;
(xi) The Pledge Agreement, duly executed by each Specified Pledgor; and
(xii) Subject to Section 7.11(b), delivery of all documents, instruments and certificates and evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary or partnership agreementdesirable in order to create and perfect Liens on the Collateral has been taken.
(b) The Company shall have paid all reasonable accrued fees and expenses of the Original Arrangers, the Administrative Agent and the Lenders which are due and payable on the Closing Date to the extent invoiced (including fees set forth in the Fee Letter and the reasonable and documented fees and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Original Arrangers and the Administrative Agent);
(c) There shall have occurred no material adverse change in the business, financial condition, results of operations or properties of the Company and its Subsidiaries, taken as a whole, since December 31, 2016;
(d) There shall exist no action, suit or proceeding (investigative, judicial or otherwise) against the Company or any of its Subsidiaries pending before any court or arbitrator or any governmental body, agency or official, or to the knowledge of the Company, threatened, that could reasonably be expected to have a Material Adverse Effect;
(e) Receipt of such documentation as may be required by any Lender, any L/C Issuer or the Administrative Agent in order to comply with Section 326 of the USA PATRIOT Act or necessary for any Lender, any L/C Issuer or the Administrative Agent to verify the identity of any Borrower as required by Section 326 of the USA PATRIOT Act, as requested through the case may beAdministrative Agent at least 5 days in advance of the Closing Date; and
(f) The Administrative Agent shall have received a Borrowing Base Report as of August 31, 2017. Upon giving effect to the initial funding of Revolving Loans and issuance of Letters of Credit, and the payment by the Borrower of all fees and expenses incurred in connection herewith, Availability shall be at least $250,000,000. Without limiting the generality of the provisions of Section 10.04, for purposes of determining compliance with the conditions specified above in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved and accepted, and to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless the Administrative Agent shall have received notice from such Loan Party Lender prior to the proposed Closing Date, as in effect on notified by the date on which Administrative Agent to the resolutions referred to in Section 3.01(b)Lenders, specifying its objection thereto. The Administrative Agent shall promptly notify the Lenders of the occurrence of the Closing Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement shall become effective on The initial obligation of the Revolving Credit Lenders to make Revolving Credit Advances, and as the obligation of any Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction or waiver of the following conditions precedent (the first date (on which all such conditions shall have been satisfied or waived being the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:):
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, day (unless otherwise specified) and (except for the Notes) in form and substance reasonably satisfactory to the Administrative Agent and sufficient copies for each BankInitial Lender:
(i) The Notes duly executed by the Borrower to the order Executed counterparts of the Banks to the extent requested by any Bank pursuant to Section 2.19this Agreement and each Guaranty.
(ii) The Guarantee duly executed by each Subsidiary GuarantorNotes payable to the order of the Lenders to the extent requested in accordance with Section 2.17(a).
(iii) Certified copies of the resolutions of the Governing Body boards of directors of each Loan Party of the Borrowers and each Guarantor (as constituted immediately prior to the Effective Date) and in respect of the Foreign Borrower, its shareholders, in customary form approving each Loan Document to which it is a party, the execution and delivery of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Documentthis Agreement.
(iv) A copy of the charter or other constitutive document of each of the Borrowers and each Guarantor and each amendment thereto, certified (as of a certificate of date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation documentorganization, as the case may be, of such Loan Party thereof as being a true and each amendment thereto on file in such Secretary of State’s office correct copy thereof; and (Bx) that with respect to the Foreign Borrower, an up-to-date excerpt (1uittreksel) such amendments are from the only amendments to such Loan Party’s charter on file in such Secretary’s office, trade register of the Dutch Chamber of Commerce (Kamers van Koophandel); and (2y) such Loan Party is duly organized and in good standing or presently subsisting under with respect to the laws Swiss Guarantor a certified copy of the State excerpt of the jurisdiction commercial register of its organization.the Canton of Thurgau relating to the Swiss Guarantor and a certified copy of the articles of association of the Swiss Guarantor issued by the commercial register of the Canton of Thurgau. 103 Chemtura (Revolving Facility) Credit Agreement
(v) A certificate of each Loan Party of the Borrowers and each Guarantor signed on behalf of each such Loan Party Borrower and each such Guarantor, respectively, by a director, 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), in customary form, certifying as to (A) the absence accuracy and completeness as of any amendments to the Effective Date of the charter or other formation document, as constitutive document of each such Borrower or such Guarantor and each amendment thereto delivered in connection with this Agreement and the case may be, absence of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), any changes thereto; (B) a true the accuracy and correct copy completeness of the bylaws, limited liability company agreement bylaws (or partnership agreement, as the case may be, equivalent organizational document) delivered in connection with this Agreement of each such Loan Party Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(b3.01(a)(iii) were adopted and the absence of any changes thereto; (C) a certificate as to the good standing (or equivalent document to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Borrower or such Guarantor as of a recent date from the Secretary of State (or other similar official, register or notary) of the jurisdiction where such Borrower or such Guarantor is organized and, to the extent available in such jurisdiction, commercial register excerpts; and (D) in the case of the Foreign Borrower, the accuracy and completeness of the trade register excerpt delivered pursuant to Section 3.01(a)(iv) above.
(vi) A certificate of the Secretary or an Assistant Secretary (or director in the case of the Foreign Borrower or the Swiss Guarantor) of each of the Borrowers and each Guarantor, in customary form, certifying the names and true signatures of the officers of each such Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder to which it is a party.
(vii) A certificate (in form and substance reasonably satisfactory to the Administrative Agent) of the Chief Financial Officer of the Company attesting to the Solvency of the Loan Parties, taken as a whole, immediately after giving effect to the Transactions.
(viii) A certificate of a Responsible Officer of the Company, in customary form, certifying that the conditions specified in Sections 3.01(f)(i) and Sections 3.02(i)(A) and (B) have been satisfied.
(ix) The following: (A) reasonably satisfactory evidence that certificates representing the Initial Pledged Equity, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt, duly indorsed in blank, as the US Loan Parties may be able to deliver using their reasonable best efforts, have been delivered to and remained held by the administrative agent under the Term Facility, and (B) evidence of insurance (to the extent required to be maintained pursuant to this Agreement) as reasonably requested by the Administrative Agent. 104 Chemtura (Revolving Facility) Credit Agreement
(A) Each Security Agreement, duly executed by each Loan Party expressed to be a party to it, together with evidence that all actions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens and security interests in the Revolving Facility Collateral and the Liens and security interests in the Term Facility Collateral, in each case created under such Security Agreement, have been taken or will be taken in accordance with the terms of the Loan Documents, (B) each Intellectual Property Security Agreement, duly executed by each Loan Party having Intellectual Property covered thereby, together with evidence that all actions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens and security interests created under such Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents, (C) each Foreign Security Document (other than those set forth in clauses (A) and (B) above), duly executed by the relevant Foreign Loan Parties, (D) each Foreign Account Control Agreement duly executed by the appropriate parties, (E) the Deposit Account Control Agreements, in each case referred to in the Security Agreements and duly executed by the appropriate parties, (F) the Intercreditor Agreements, duly executed by the parties thereto and (G) the Subordination Agreement, duly executed by the parties thereto; provided, however, that if the Company is unable to deliver one or more of the items described in clause (E) above after the exercise of commercially reasonable efforts, or one or more of the items described in clause (B) above, or the item described in clause (C) or (D) above with respect to the Foreign Account Control Agreement for the account no. 1000000 at Commerzbank, delivery of such undelivered items shall not be a condition precedent under this Section 3.01, and the Company hereby agrees to deliver such items to the Administrative Agent within 60 days after the Effective Date; provided further that in each case, the Administrative Agent may, in its reasonable discretion, grant extensions of such time period.
(xi) Certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches or equivalent reports or searches, each of a recent date listing financing statements, lien notices or comparable documents that name any US Loan Party as debtor and that are filed in those state and county jurisdictions, as applicable, in which any Loan Party is organized or maintains its principal place of business, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens and other Liens permitted under Section 5.02(a)).
(xii) (A) audited annual financial statements of the Company and its Subsidiaries, on a Consolidated basis, for the year ended December 31, 2012; and (B) interim unaudited quarterly financial statements of the Company and its Subsidiaries since December 31, 2012 through September 30, 2013.
(xiii) A Notice of Borrowing for (and to the extent of) any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than Existing Letters of Credit) to be issued, on the Effective Date, if any.
(xiv) A favorable opinion of Kxxxxxxx & Exxxx LLP, counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agents.
(xv) A favorable opinion of Eversheds B.V., Dutch counsel to the Foreign Borrower, in form and substance reasonably satisfactory to the Foreign Administrative Agent.
(xvi) A favorable opinion of Eversheds Ltd, Swiss counsel to the Foreign Borrower and the Swiss Guarantor, in form and substance reasonably satisfactory to the Foreign Administrative Agent.
(xvii) A favorable opinion of Norton Rxxx Xxxxxxxxx LLP, English counsel to the Administrative Agents.
(xviii) [Reserved] 105 Chemtura (Revolving Facility) Credit Agreement
(xix) A favorable opinion of Norton Rxxx Xxxxxxxxx LLP, German counsel to the Administrative Agents.
(xx) A favorable opinion of Lydian CVBA, Belgian counsel to the Administrative Agents.
(xxi) A favorable opinion of Lxxx & Staehelin, Swiss counsel to the Administrative Agents.
Appears in 1 contract
Samples: Senior Secured Revolving Facilities Credit Agreement (Chemtura CORP)
Conditions Precedent to Effectiveness. This Agreement shall will become effective on and as upon the satisfaction of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banksprecedent:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such dayday (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent Initial Lenders (unless otherwise specified) and in sufficient copies for each BankInitial Lender:
(i) The Notes duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.19.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body Boards of Directors of each Loan Party of the Borrower and each Material Guarantor approving each Loan Document to which it is a partythe amendment and restatement of the Existing Agreement on the terms set forth in this Agreement, and of all documents evidencing other necessary corporate or organizational constitutive action and, if any, governmental and governmental approvalsother third party approvals and consents, if any, with respect to this Agreement and each other Loan Document.
(ivii) A To the extent available, and provided the same has not been previously delivered to the Administrative Agent, a copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a certificate of date reasonably near the Effective Date) by the Secretary of State of the jurisdiction of its incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation documentorganization, as the case may be, of such Loan Party thereof as being a true and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationcorrect copy thereof.
(viii) A certificate of each Loan Party of the Borrower and each Material Guarantor signed on behalf of the Borrower and such Loan Party Guarantor, respectively, 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 accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any amendments change thereto since the Prior Effective Date (a copy of which, if available on the Effective Date and not previously delivered to the charter or other formation documentAdministrative Agent, as the case may be, of shall be attached to such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(ivcertificate), ; (B) a true the accuracy and correct copy completeness of the bylaws, limited liability company agreement bylaws of the Borrower or partnership agreement, as the case may be, of such Loan Party Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(b3.01(a)(i) were adopted and the absence of any change since the Prior Effective Date (a copy of which, if available on the Effective Date and not previously delivered to the Administrative Agent, shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor; (D) the accuracy in all material respects of the representations and warranties made by the Borrower or such Guarantor in the Loan Documents to which it is or is to be a party as though made on and as of the Effective Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date and to the application of proceeds, if any, therefrom; and (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Effective Date or the application of proceeds, if any, therefrom, that would constitute a Default.
(iv) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Material Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(v) Such certificates representing the Initial Pledged Equity of domestic entities that have not previously been delivered to the Administrative Agent as described and referred to on Schedule IV hereto as available, accompanied by stock powers, duly executed in blank.
(b) A favorable opinion of Weil, Gotshal & Xxxxxx LLP, counsel for the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Initial Lenders may reasonably request and a favorable opinion from Xxxxxxx X. Xxxxxxxx, Executive Vice President and General Counsel of the Borrower, in substantially the form of Exhibit D-2 hereto.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Worldcom Inc)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts The effectiveness of this Agreement duly executed by and the Borrower and all obligation of each of the Banks and to make any Advance hereunder or of CBT to issue any Letter of Credit hereunder is subject to the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banksprecedent:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before copies (in sufficient number for each of the Effective Date Banks to receive a copy) of all of the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and the Banks, unless waived by each Bankof the Banks:
(i) The Notes This Agreement, appropriately completed and duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.19.parties hereto;
(ii) The Guarantee Reaffirmation of Subsidiary Guaranty, duly executed and delivered by each of the Subsidiary Guarantor.Guarantors;
(iii) Certified copies A certificate of the secretary of each of the Borrowers, certifying that (i) a correct and complete copy of its Articles of Incorporation, with all amendments thereto, is attached to the certificate, (ii) a correct and complete copy of its Bylaws, with all amendments thereto, is attached to the certificate, (iii) a correct and complete copy of the resolutions of its Board of Directors authorizing the Governing Body execution, delivery and performance of each the Loan Party approving each Loan Document Documents to which it is a partyparty are attached to the certificate, and such resolutions have not been subsequently modified or repealed and (iv) there are no proceedings pending or contemplated as to the merger, consolidation, liquidation or dissolution of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.such Borrower;
(iv) A certificate of the secretary of each Subsidiary Guarantor, certifying that (i) with respect to each Subsidiary Guarantor which is a corporation, (A) there have been no changes to its Articles of Incorporation or By-laws since the date of certification thereof to the Banks, (B) if there have been any changes to such Subsidiary Guarantor's Articles of Incorporation or By-laws, a correct and complete copy of a certificate its Articles of Incorporation, certified by the Secretary of State of its state of incorporation, or Bylaws, as applicable, is attached to the jurisdiction certificate and (C) a correct and complete copy of incorporation the resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Documents to which it is a party are attached to the certificate, and such resolutions have not been subsequently modified or repealed, (ii) with respect to each Loan PartySubsidiary Guarantor which is a limited partnership, dated reasonably near the Effective Date certifying (A) as there has been no change to such Subsidiary Guarantor's agreement of limited partnership since the date of certification thereof to the Banks, or if there has been any such change, a true correct and correct complete copy of the charter or other formation documentagreement of limited partnership, as with all amendments thereto, is attached to the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office certificate and (B) that (1) such amendments are all action on behalf of the only amendments partnership and the partners necessary to such authorize the execution, delivery and performance of the Loan Party’s charter on file in such Secretary’s officeDocuments to which it is a party have been taken, and (2iii) there are no proceedings pending or contemplated as to the merger, consolidation, liquidation or dissolution of such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.Subsidiary Guarantor;
(v) A certified copy of all documents evidencing any necessary consent or governmental approvals (if any) with respect to the execution, delivery and performance of the Loan Documents and the consummation of the transactions contemplated hereby; (vi) A certificate executed by the secretary or any assistant secretary of each Loan Party signed on behalf of the Borrowers certifying the names of the officers of such Borrower authorized to sign the Loan Party Documents and to give notices and other communications in connection with this Agreement and the transactions contemplated hereby, together with a sample of the true signature of such officers;
(vii) A certificate executed by its Secretary the secretary or any Assistant Secretaryan assistant secretary of each of the Subsidiary Guarantors certifying the names of the officers of such Subsidiary authorized to sign the Subsidiary Guaranty or the Reaffirmation of Subsidiary Guaranty, dated as applicable, together with a sample of the Effective Date true signature of such officers;
(viii) A favorable opinion of counsel to the Borrowers and the Subsidiary Guarantors substantially in the form of Exhibit C attached hereto;
(ix) A closing certificate (the statements made "Closing Certificate"), executed by the president, senior vice president or chief financial officer of QDI, certifying that (i) the representations and warranties contained in which certificate shall be this Agreement and each other Loan Document are true on and accurate in all material respects, (ii) no Default or Event of Default has occurred and is continuing and (iii)except as disclosed therein, there has been no change to the insurance maintained by QDI and its Subsidiaries as set forth in the evidence of insurance delivered to the Banks in connection with execution and delivery of the Effective Date), certifying Existing Credit Agreement; and
(x) Such other approvalsor documents as to the Administrative Agent or the Required Banks may reasonably request;
(Ab) Application of the absence proceeds of any amendments the Mortgage Transactions to the charter or other formation document, as the case may be, of such Loan Party since the date repayment of the Secretary Loans outstanding in a principal amount of State’s certificate referred to not less than $45,000,000, together with the accrued interest thereon, plus, in the event that such prepayment results in the prepayment of a LIBOR Base Loan, any amounts which are payable under Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)2.4 hereof;
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified paid all fees required to be paid on or before the Administrative Effective Date, and all reasonable expenses of the Agent in writing as to the proposed extent invoiced prior to the Effective Date.
(b) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The Administrative representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and (except for the Notes) in sufficient copies for each BankLender:
(i) The Notes duly executed made by the Borrower to the order of the Banks Lenders to the extent requested by any Bank Lender pursuant to Section 2.192.17.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body Board of each Loan Party Directors (or equivalent body) of the Borrower approving each Loan Document this Agreement and the Notes to which it is a partybe delivered by it, and of its by-laws and certificate of incorporation, together with all amendments thereto, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to this Agreement and such Notes.
(iii) A certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each Loan Documentof the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes and the other documents to be delivered by it hereunder.
(iv) A favorable opinion of Xxxxx X. Xxxxxxxxxx, Assistant General Counsel for the Borrower, substantially in the form of Exhibit D hereto and as to such other matters as any Lender through the Agent may reasonably request.
(v) A favorable opinion of Xxxxx Day, counsel for the Borrower, in form and substance satisfactory to the Agent.
(d) The Agent shall have received on or before the Effective Date (i) a counterpart of this Agreement signed on behalf of each party hereto and (ii) a copy of a good standing certificate of issued by the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of StateBorrower’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationincorporation.
(ve) A certificate of each Loan Party signed on behalf of such Loan Party The Lenders shall have received all documentation and other information required by its Secretary or any Assistant Secretaryregulatory authorities under applicable “know your customer” and Anti-Money Laundering Laws, dated including the Effective Date (the statements made in which certificate shall be true on and as of PATRIOT Act, requested at least three Business Days prior to the Effective Date), certifying as to (A) the absence of any amendments to the charter or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b).
Appears in 1 contract
Samples: 364 Day Term Loan Credit Agreement (Eastman Chemical Co)
Conditions Precedent to Effectiveness. The effectiveness of this Amendment and the Revolving Commitment Increase is subject to the truth and accuracy of the representations set forth in Sections 5 and 6 below and receipt by the Administrative Agent of each of the following, each of which shall be in form and substance satisfactory to Administrative Agent:
(a) This Amendment, duly executed and delivered by the Borrower, Holdings, each Lender providing an Incremental Revolving Commitment (which constitute the Required Lenders) and the Administrative Agent;
(b) A pro forma Compliance Certificate after giving effect to the Revolving Commitment Increase and amendment to the definition of Consolidated EBITDA contemplated by this Amendment;
(c) A certificate of the Borrower dated as of the Incremental Commitments Effective Date signed by an Authorized Officer of the Borrower certifying that, before and after giving effect to the Revolving Commitment Increase contemplated by this Amendment, (i) the representations and warranties contained in Section 7 of the Credit Agreement shall become effective and the other Credit Documents are true and correct in all material respects on and as of the first date (the “Incremental Commitments Effective Date”) on , except to the extent that such representations and warranties specifically refer to an earlier date, in which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent case they shall have been satisfied, except that Section 2.04(a) shall become effective true and correct in all material respects as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the followingsuch earlier date, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each Bank:
(i) The Notes duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.19.
(ii) The Guarantee duly executed no Default or Event of Default exists before or after giving effect to such addition or the other transactions contemplated by each Subsidiary Guarantor.
this Amendment and (iii) Certified copies all conditions set forth in Section 6.2 of the resolutions of the Governing Body of each Loan Party approving each Loan Document to which it is a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) Credit Agreement are satisfied as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(v) A certificate of each Loan Party signed on behalf of such Loan Party by 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 or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)date;
Appears in 1 contract
Samples: Credit Agreement (Air Transport Services Group, Inc.)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as The effectiveness of Original DIP Credit Agreement, the initial obligation of the first date (Revolving Credit Lenders to make Revolving Credit Advances up to the “Effective Date”) on which Revolving Credit Availability Amount then in effect, the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all obligation of the Initial Swing Line Lender to make the initial Swing Line Advance and obligation of the Initial Issuing Banks and to issue the initial Letter of Credit are, in each case, subject to the satisfaction of the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:(other than those conditions specified in Schedule 5.01(n)(iii)):
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such dayday (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each BankInitial Lender:
(i) The Notes duly executed by the Borrower payable to the order of the Banks Lenders to the extent requested by any Bank pursuant to in accordance with Section 2.192.16(a).
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body Boards of Directors of each Loan Party of the Borrower and each Guarantor approving each Loan Document to which it is a partythe execution and delivery of this Agreement, and of all documents evidencing other necessary corporate or organizational constitutive action and, if any, governmental and governmental approvalsother third party approvals and consents, if any, with respect to this Agreement and each other Loan DocumentDocument other than any approval required and granted pursuant to the Interim Order.
(iviii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a certificate of date on or after November 15, 2005) by the Secretary of State of the jurisdiction of its incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation documentorganization, as the case may be, of such Loan Party thereof as being a true and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationcorrect copy thereof.
(viv) A certificate of each Loan Party of the Borrower and each Material Guarantor signed on behalf of the Borrower and such Loan Party Guarantor, respectively, 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 accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any amendments to the charter or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), changes thereto; (B) a true the accuracy and correct copy completeness of the bylaws, limited liability company agreement bylaws of the Borrower or partnership agreement, as the case may be, of such Loan Party Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(b3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor; (D) the accuracy in all material respects of the representations and warranties made by the Borrower or such Guarantor in the Loan Documents to which it is or is to be a party as though made on and as of the Effective Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date and to the application of proceeds, if any, therefrom; and (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Effective Date or the application of proceeds, if any, therefrom, that would constitute a Default.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Material Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule V hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Intellectual Property Security Agreement have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A Thirteen Week Forecast detailing the Borrower’s anticipated cash receipts and disbursements reasonably satisfactory in form and substance to the Initial Lenders.
(ix) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(x) A favorable opinion of (A) Jxxxx Day, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Initial Lenders may reasonably request, (B) Hunton & Wxxxxxxx LLP, Virginia and Delaware counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto, and addressing such other matters as the Initial Lenders may reasonably request and (C) Sxxxxxxx, Loop & Kxxxxxxx, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-3 hereto and addressing such other matters as the Initial Lenders may reasonably request .
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Dana Corp)
Conditions Precedent to Effectiveness. This Agreement shall will become effective upon the following conditions being met (unless waived in writing by all Lenders) including the receipt by the Agent, for and on and as behalf of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all Lenders, of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banksfollowing:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.a duly executed copy of this Agreement;
(b) The Administrative Agent a certificate of status or other similar type evidence from its jurisdiction of formation for each Loan Party that is a corporation or a partnership;
(c) duly executed copies of the Closing Certificates from or on behalf of each Loan Party, which shall attach the Material Contracts and include a certification as to the completeness of the same and that the Material Contracts have received on or before not been amended since the Effective Date versions thereof previously delivered to the following, Lenders;
(d) a duly executed copy of the Guarantee Agreement by each dated such dayLoan Party other than the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, acting reasonably;
(e) a duly executed copy of a guarantee from the Borrower in favour of the Agent on behalf of the Hedge Providers, in form and substance satisfactory to the Agent, acting reasonably;
(f) a duly executed copy of the Closing Opinion;
(g) a duly executed copy of a legal opinion from Lenders' counsel;
(h) an executed copy of a confirmation of subordination agreement in respect of each Bank:indenture governing the Canetic Convertible Debentures, the Vault Convertible Debentures and any other Convertible Debentures or Subordinated Debt between the applicable trustee under each such indenture and the Agent;
(i) The Notes duly executed a Notice of Borrowing for an amount sufficient to repay in full the Existing Credit Facility;
(j) evidence satisfactory to the Agent that arrangements have been made for the repayment and termination of the Existing Credit Facility;
(k) any information, including supporting documentation and other evidence, requested by any Lender or the Agent pursuant to Section 22.11;
(l) execution and delivery of an agency agreement between the Agent and the Borrower; and
(m) the payment of all fees and expenses which are payable by the Borrower to the order of the Banks Agent and Lenders on or prior to the extent requested by any Bank pursuant to Section 2.19Closing Date.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body of each Loan Party approving each Loan Document to which it is a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(v) A certificate of each Loan Party signed on behalf of such Loan Party by 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 or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b)
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement shall become effective on The obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a), the initial obligation of the Revolving Credit Lenders to make Revolving Credit Advances, and as the obligation of any Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction of the following conditions precedent (the first date (on which all such conditions shall have been satisfied or waived being the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:):
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such dayday (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent (it being agreed that documents delivered in substantially the form and substance of the corresponding documents delivered under Section 3.01 of the Existing DIP Agreement, mutatis mutandis, are satisfactory to the Administrative Agent), and (except for the Notes) in sufficient copies for each BankInitial Lender:
(i) The Notes duly executed by the Borrower payable to the order of the Banks Lenders to the extent requested by any Bank pursuant to in accordance with Section 2.192.16(a).
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body boards of directors of each Loan Party of the Borrower and each Guarantor approving each Loan Document to which it is a party, the execution and delivery of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Documentthis Agreement.
(iviii) A Unless the applicable Guarantor certifies as to the accuracy and completeness as of the Effective Date of the copies of the charter or other constitutive document delivered in connection with the Existing DIP Agreement, a copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a certificate of date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation documentorganization, as the case may be, of such Loan Party thereof as being a true and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationcorrect copy thereof.
(viv) A certificate of each Loan Party of the Borrower and each Guarantor signed on behalf of the Borrower and such Loan Party Guarantor, respectively, 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 accuracy and completeness as of the Effective Date of the charter of the Borrower or such Guarantor delivered in connection with this Agreement (or in connection with the Existing DIP Agreement) and the absence of any amendments to the charter or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), changes thereto; (B) a true the accuracy and correct copy completeness of the bylaws, limited liability company agreement bylaws (or partnership agreement, as equivalent organizational document) delivered in connection with this Agreement (or in connection with the case may be, Existing DIP Agreement) of the Borrower or such Loan Party Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(b3.01(a)(ii) were adopted and the absence of any changes thereto; and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Administrative Agent.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents; provided that it is understood and agreed that the “Intellectual Property Security Agreement” delivered under (and as defined in) the Existing DIP Agreement shall satisfy this condition in all respects with respect to each Loan Party party thereto if the representations and warranties made by such Loan Party therein, including without limitation those referencing the schedules thereto, are true and correct in all material respects as of the Effective Date.
(viii) A forecast reasonably satisfactory to the Administrative Agent detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Effective Date and ending on the month of December 2010 and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent.
(x) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than Existing Letters of Credit) to be issued, on the Effective Date.
(xi) A favorable opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto consistent in all material respects with the corresponding opinion delivered in connection with the Existing DIP Agreement.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Chemtura CORP)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each Bank:
(i) The Notes duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.19.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body of each Loan Party approving each Loan Document to which it is a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(v) A certificate of each Loan Party signed on behalf of such Loan Party by 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 or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect occur on the date on which the Lender shall have received each of the following, each dated the date hereof unless otherwise indicated or agreed to by the Lender, in form and substance satisfactory to the Lender:
(a) this Agreement, duly executed and delivered by the Borrower and Sonus Corp.;
(b) the Security Agreement, duly executed and delivered by the Borrower, together with evidence satisfactory to the Lender of the effectiveness and perfection of the Liens contemplated thereby;
(c) the Note, duly executed and delivered by the Borrower for the account of the Lender;
(d) a copy of the Sales Agreement, duly executed and delivered by the Borrower and the other parties thereto;
(e) the Collateral Account Agreement, duly executed and delivered by the Borrower and the other parties thereto;
(f) the Subsidiary Guaranty and the Subsidiary Security Agreement, duly executed and delivered by the Initial Acquisition Subsidiary and the other parties thereto, together with evidence satisfactory to the Lender of the effectiveness and perfection of the Liens contemplated thereby;
(g) a Certificate of the Secretary of each Obligor as to (i) no amendments to the certificate of incorporation or bylaws since the date of the last amendment; (ii) no liquidation or dissolution proceedings; (iii) attached copy of certificate of incorporation and resolutions referred to in Section 3.01(b)of the board of directors; and (iv) incumbency and signatures of officers; and
(h) such additional documents, information and materials as the Lender may reasonably request.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “"Effective Date”") on which the Administrative Agent shall have received counterparts a counterpart of this Agreement duly executed by the Borrower and a counterpart of, or a copy of a signature page to, this Agreement duly executed by all of the Banks and the following additional conditions precedent shall have been satisfied, except that Section 2.04(a2.03(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of (or, in the case of any Bank, a copy of a signature page to) this Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and each BankAgent:
(i) The Notes duly executed by the Borrower to the order of the Banks to the extent requested by any Bank pursuant to Section 2.192.17.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body Board of each Loan Party Directors of the Borrower approving each Loan Document to which it is a partyDocument, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Loan Document.
(iii) A certificate of the secretary or an assistant secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign each Loan Document and the other documents to be delivered by the Borrower hereunder.
(iv) A copy of a certificate of the Secretary of State an officer of the jurisdiction Borrower stating the respective ratings by each of incorporation S&P and Xxxxx'x of each Loan Party, dated reasonably near the senior unsecured long-term debt of the Borrower as in effect on the Effective Date certifying (A) as to a true and correct copy of the charter or other formation document, as the case may be, of such Loan Party and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationDate.
(v) A favorable opinion of Xxxxx X. Xxxxxxxxx, Assistant Secretary and Assistant General Counsel for the Borrower, in substantially the form of Exhibit C-1 hereto.
(vi) A favorable opinion of Xxxxx Xxxxx L.L.P., counsel for the Borrower, in substantially the form of Exhibit C-2 hereto.
(vii) A favorable opinion of Linklaters LLP, counsel for the Agent, in form and substance satisfactory to the Agent.
(c) On the Effective Date, the following statements shall be true and the Agent shall have received a certificate signed by a duly authorized officer of each Loan Party signed on behalf of such Loan Party by its Secretary or any Assistant Secretarythe Borrower, dated the Effective Date Date, stating that:
(the statements made i) The representations and warranties contained in which certificate shall be true Section 4.01 are correct on and as of the Effective Date), certifying as to and
(Aii) No event has occurred and is continuing that constitutes a Default or an Event of Default.
(d) All accrued fees and reasonable out-of-pocket expenses of the absence Co-Lead Arrangers shall have been paid (including the reasonable fees and expenses of any amendments counsel to the charter or other formation document, as the case may be, of such Loan Party since the date Co-Lead Arrangers for which invoices have been submitted).
(e) The Borrower shall have paid all accrued fees and reasonable out-of-pocket expenses of the Secretary Agent (including reasonable fees and expenses of State’s certificate referred counsel to in Section 3.01(b)(ivthe Agent for which invoices have been submitted), (B) a true and correct copy of the bylaws, limited liability company agreement or partnership agreement, as the case may be, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(b).
Appears in 1 contract
Samples: Revolving Bridge Facility Credit Agreement (Halliburton Co)
Conditions Precedent to Effectiveness. This Agreement shall become effective on and as of the first date (the “Effective Closing Date”) ), on or before July 21, 2009, on which the Administrative Agent shall following conditions precedent have received counterparts been satisfied (and the obligation of this Agreement duly executed by each Lender to make Advances is subject to the Borrower and all satisfaction of the Banks and the following additional conditions precedent shall have been satisfied, except that precedent) subject to Section 2.04(a) shall become effective as of the first date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks:5.01(v):
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Administrative Primary Agent shall have received on or before the Effective Closing Date the following, each dated such dayday (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent and each Bank:reasonably
(i) The Notes duly executed by the Borrower payable to the order of the Banks Lenders to the extent requested by any Bank pursuant to in accordance with Section 2.192.17.
(ii) The Guarantee duly executed by each Subsidiary Guarantor.
(iii) Certified copies of the resolutions of the Governing Body Boards of Directors of each Borrower and each Guarantor approving the execution and delivery of this Agreement, the Loan Party approving each Loan Document to which it is a party, Documents and of all documents evidencing other necessary corporate or organizational constitutive action and governmental approvalsand, if any, required governmental and the third party approvals and consents, if any (including, without limitation, receipt of each third party approval and consent referred to on Schedule 4.01(f)), with respect to this Agreement and each other Loan Document.
(iviii) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the charter or other formation documentconstitutive document of each Borrower and each Guarantor and each amendment thereto, certified as of a recent date, by the Secretary of State or equivalent governmental authority of the jurisdiction of its incorporation or organization, as the case may be, of such Loan Party thereof as being a true, correct and each amendment thereto on file in such Secretary of State’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such Secretary’s office, and (2) such Loan Party is duly organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organizationcomplete copy thereof.
(viv) A certificate and/or certificates of each Loan Party Borrower and each Guarantor signed on behalf of such Loan Party Borrower and such Guarantor, respectively, by its President, Chief Executive Officer, Chief Financial Officer or Treasurer and its Secretary or any Assistant Secretary, dated the Effective Closing Date (the statements made in which certificate shall be true on and as of the Effective Closing Date), certifying as to (A) the accuracy and completeness of the charter of such Borrower or such Guarantor and the absence of any amendments to the charter or other formation document, as the case may be, of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 3.01(b)(iv), changes thereto; (B) a true the accuracy and correct copy completeness of the bylaws, limited liability company agreement bylaws or partnership agreement, as the case may be, equivalent governing documents of such Loan Party Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(b3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the good standing (or equivalent) of each Borrower and each Guarantor (and attaching a certificate of good standing (or equivalent, if applicable) certified as of a recent date, by the Secretary of State (or equivalent governmental authority) of the jurisdiction of its incorporation or organization, as the case may be (or equivalent governmental authority, as applicable), (D) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of any Borrower or any Guarantor; (E) the accuracy in all material respects of the representations and warranties made by any Borrower or such Guarantor in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings to be made on such date, to the application of proceeds, if any, therefrom, and to the consummation of the transactions contemplated hereby; (F) the absence of any event occurring and continuing, or resulting from any of the Borrowings to be made on the Closing Date or the application of proceeds, if any, therefrom or any other transactions contemplated hereby, that would constitute a Default or Event of Default, and (G) in a certificate executed by the President, Chief Executive Officer or Chief Financial Officer, the Guarantors hereunder as of the Closing Date constitute all of the guarantors required by the Guaranty Coverage Test as of the Closing Date.
(v) A certificate of the Secretary or an Assistant Secretary of each Borrower and each Guarantor certifying the names and true signatures of the officers of such
(vi) The Primary Agent and the Primary Collateral Agent shall have received this Agreement and each of the Loan Documents (including, without limitation, the Guaranties, the Intercreditor Agreement and each Collateral Document, but other than Secured Hedge Agreements), each executed and delivered by a duly authorized officer of each Loan Party and each other party thereto, which shall be in full force and effect; provided that no guaranty shall be required to be delivered prior to or on the Closing Date that is not required pursuant to the Guaranty Coverage Test, together with the following:
(A) subject to the Intercreditor Agreement, such certificates representing the Initial Pledged Equity of entities referred to on Schedule I to the Security Agreement, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule I to the Security Agreement, duly indorsed in blank,
(B) proper financing statements (Form UCC-1 or a comparable form) and equivalent registration statements under the UCC or the PPSA of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the liens, hypothecs and security interest created or purported to be created under the Security Agreement, covering the Collateral described therein, in each case completed in a manner reasonably satisfactory to the Primary Collateral Agent, and
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Samples: Term Facility Credit Agreement (World Color Press Inc.)
