Conditions Precedent to the Closing Date. The obligations of the Lenders to make Advances hereunder shall be subject to the following conditions having been satisfied or waived (the first such date on which each of the following conditions have been satisfied or waived, the “Closing Date”): (a) Since November 30, 2023, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. (b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities). (c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a Responsible Officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date. (d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, in form and substance reasonably satisfactory to the Agent: (i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date. (ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes. (iii) A certificate of a Responsible Officer of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state Governmental Authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state Governmental Authority of the Company’s jurisdiction of incorporation. (iv) A customary opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, New York, counsel to the Company. (v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent. (vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Samples: Credit Agreement (Td Synnex Corp)
Conditions Precedent to the Closing Date. The obligations of the Lenders to make Advances Closing Date hereunder shall be is subject to the following conditions having been satisfied condition precedent that the Buyer, the Borrower and the Administrative Agent (as the Borrower’s assignee) shall have received, on or waived before the Closing Date, the following, each (the first such date on which each unless otherwise indicated) dated as of the following conditions have been satisfied or waivedClosing Date, and each in form and substance reasonably satisfactory to the Buyer, the “Closing Date”Borrower and the Administrative Agent (as the Borrower’s assignee):
(a) Since November 30A copy of the resolutions or written consent of the board of directors or managers or other equivalent governing body of each Originator approving this Agreement and the other Transaction Documents to be executed and delivered by it and the transactions contemplated thereby, 2023, there has not been any effect, change, event, circumstance, condition, occurrence certified by the Secretary or development that has had Assistant Secretary (or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.equivalent) of such Originator;
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to Good standing certificates, or in connection with this Agreementan equivalent certificate, for each Originator issued as of a recent date reasonably acceptable to the extent invoiced at least three business days prior to Buyer, the Closing Date Borrower and the Administrative Agent (except as otherwise reasonably agreed the Borrower’s assignee) by the Company) (which amounts may be offset against the proceeds Secretary of State, or other equivalent authority, of the Facilities).jurisdiction of such Originator’s organization;
(c) On A certificate of the Closing DateSecretary or Assistant Secretary (or equivalent) of each Originator certifying the names and true signatures of the officers authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (on which certificate the Servicer, the Buyer, the Borrower and the Administrative Agent (as the Borrower’s assignee) may conclusively rely until such time as the Servicer, the Buyer, the Borrower and the Administrative Agent (as the Borrower’s assignee) shall have received for receive from such Person a revised certificate meeting the account of each Lender a certificate signed by a Responsible Officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) requirements of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.clause (c));
(d) The Agent shall have received certificate or articles of incorporation, certificate of formation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State, or other equivalent authority, of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws, limited liability company agreement, or equivalent governing document of such Originator (including all amendments and modifications thereto), each duly certified by the Secretary or an Assistant Secretary (or equivalent) of such Originator;
(e) The forms of financing statements (Form UCC-1) that name each Originator as the debtor/seller and the Buyer as the buyer/assignee of the Receivables sold by such Originator as may be necessary or, in the Buyer’s reasonable opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Buyer’s ownership interest in all Receivables and Related Rights (including, without limitation, Related Security) in which an ownership or security interest has been assigned to the Buyer hereunder;
(f) Written lien search results listing all effective financing statements that name the Originators as debtors or sellers and that are filed in each Originator’s jurisdiction of organization, together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, on or before prior to the Closing Date copies Initial Funding Date), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and tax and judgment lien search results showing no evidence of such liens filed against any Originator;
(g) Favorable opinions of counsel to the following, each dated the Closing DateOriginators, in form and substance reasonably satisfactory to the Buyer, the Borrower, the Administrative Agent (as the Borrower’s assignee), and each Group Agent:;
(h) [Reserved]; and
(i) The Notes Evidence of (i) the execution and delivery by each Originator and the Buyer of this Agreement and each of the other Transaction Documents to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date.
be executed and delivered in connection herewith; and (ii) Certified copies that each of the resolutions conditions precedent to the execution, delivery and effectiveness of such other Transaction Documents has been satisfied to the Board of Directors of Buyer’s, the Company approving this Agreement Borrower’s and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and Administrative Agent’s (as the NotesBorrower’s assignee) satisfaction.
(iii) A certificate of a Responsible Officer of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state Governmental Authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state Governmental Authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, New York, counsel to the Company.
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Samples: Receivables Purchase Agreement (Exact Sciences Corp)
Conditions Precedent to the Closing Date. The obligations of the Lenders to make Advances and of each Issuing Bank to issue Letters of Credit hereunder shall be subject to the following conditions having been satisfied or waived (the first such date on which each of the following conditions have been satisfied or waived, the “Closing Date”):
(a) Since November 30March 22, 20232021, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse EffectEffect (as defined in the Merger Agreement) on the Company (as defined in the Merger Agreement).
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).. US-DOCS\122160094.24
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a Responsible Officer duly authorized officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, in form and substance reasonably satisfactory to the Agent:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of a Responsible Officer the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state Governmental Authority governmental authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state Governmental Authority governmental authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx Pillsbury Wxxxxxxx Xxxx Xxxxxxx LLP, New York, counsel to the Company.
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Samples: Credit Agreement (Synnex Corp)
Conditions Precedent to the Closing Date. The obligations effectiveness of the Lenders to make Advances hereunder shall be this Agreement is subject to satisfaction of the following conditions having been satisfied or waived precedent:
(the first such date on which a) Administrative Agent shall have received each of the following conditions have been satisfied or waiveddocuments, the “Closing Date”):
duly executed, each (aunless otherwise specified below) Since November 30, 2023, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(b) The Company shall have paid on dated the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a Responsible Officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, in form and substance reasonably satisfactory to the AgentAdministrative Agent and each Lender:
(i) The Notes duly executed counterparts of this Agreement, sufficient in number for distribution to the Lenders to the extent requested by any Administrative Agent, each Lender pursuant to Section 2.16 prior to the Closing Date.and Borrower;
(ii) Certified duly executed Guaranty Agreement;
(iii) certified copies of (A) the Constituent Documents, if any (including any amendments or supplements thereto) of each Loan Party, (B) the resolutions authorizing and approving the making and performance by each Loan Party of this Agreement, the Board of Directors of the Company approving this Agreement Pledge Agreement, and the Notesother Loan Documents to which such Loan Party is a party and the Loans hereunder, and of all (C) documents evidencing all other necessary corporate action company action, governmental approvals and governmental approvalsthird-party consents, if any, with respect to this Agreement Agreement, the Pledge Agreement, and the Notes.any other Loan Document;
(iiiiv) A a certificate of a Responsible Officer of the Company each Loan Party certifying the names and true signatures of the officers Responsible Officers of the Company such Loan Party authorized to sign this Agreement, the Pledge Agreement and the Notes and the any other documents Loan Document required to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, hereunder to the extent applicable, as of which such Loan Party is a recent date by the applicable state Governmental Authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state Governmental Authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, New York, counsel to the Company.party;
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent.[Reserved]
(vi) certificates evidencing the good standing of each Loan Party in its jurisdiction of formation dated a date not earlier than ten (x10) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date as to the good standing of such Loan Party;
(vii) an opinion of Delaware, Colorado and New York counsel to the Loan Parties covering the following matters: legal existence and good standing, power, authorization and execution, capacity, enforceability, non-contravention (corporate, contractual and legal), governmental approval, compliance with margin regulations and the Investment Company Act; and
(viii) the results of tax, judgment and Lien searches with respect to Borrower and Rentech Development Corporation in Delaware and with respect to Guarantor in Colorado.
(b) [Reserved]
(c) [Reserved]
(d) Any fees required to be paid on or before the Closing Date, including, without limitation, the Agency Fee and fees and expenses of counsel to Administrative Agent and Lenders, shall have been paid.
(e) Borrower shall have provided each Lender with a completed and executed Form G-3 issued by the Federal Reserve System.
(f) [Reserved]
(g) Administrative Agent shall have received evidence that the Credit Agreement dated as of September 23, 2013 among Borrower, Credit Suisse AG, Cayman Islands Branch, as Administrative Agent and lender, and the other lenders party thereto (the “Existing Credit Agreement”) shall have been repaid in full or otherwise satisfied and extinguished and all commitments and agreements relating thereto terminated, including a duly executed customary payoff letter, appropriately completed UCC-3 termination statements and such other documentation as may be requested to evidence such repayment or termination.
(h) Each of the Subscription Agreement between Guarantor, the purchasers party thereto and the purchasers’ representative party thereto (the “Subscription Agreement”), each Put Option Agreement between Put Pledgor and the applicable optionee party thereto, the Pledge Agreement between Put Pledgor and Credit Suisse AG, Cayman Islands Branch (the “Put Pledge Agreement”), the Custody and Control Agreement between Put Pledgor and the secured party and custodian party thereto in connection with the Put Pledge Agreement, the Amended and Restated Limited Liability Company Agreement of Put Pledgor, the Articles of Amendment to the Articles of Incorporation of Guarantor (setting forth the preferences, limitations and relative rights of Guarantor’s Series E Convertible Preferred Stock), as filed with the Secretary of State of the State of Colorado on the date hereof pursuant to the Subscription Agreement, and the Registration Rights Agreement between Guarantor and (collectively, the “Preferred Equity Documents”) shall have been duly executed and the transactions contemplated thereby duly consummated.
(i) Administrative Agent shall have received a 2014 annual consolidated budget for Guarantor and its Subsidiaries (other than the Issuer Entities).
(j) Administrative Agent shall have received a pro forma consolidated balance sheet for Guarantor and a pro forma balance sheet for Borrower, each as of December 31, 2013 and after giving effect to the transactions contemplated hereby and by the Preferred Equity Documents, which balance sheets shall have been prepared in good faith by Guarantor and Borrower, as applicable, and shall not be materially inconsistent with the forecasts previously provided to Administrative Agent.
(k) Each of the representations and warranties contained in Article IV herein and in the other Loan Documents shall be true and correct on and as of the Closing Date.
(l) No event shall have occurred which constitutes a Default or an Event of Default.
Appears in 1 contract
Conditions Precedent to the Closing Date. The obligations This Agreement shall become effective on and as of the Lenders to make Advances hereunder shall be subject to the following conditions having been satisfied or waived first date (the first such date on which each of the following conditions have been satisfied or waived, the “Closing Date”) on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):
(a) Since November 30, 2023, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a Responsible Officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Administrative Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Datesuch day (unless otherwise specified), in form and substance reasonably satisfactory to the AgentLenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested by any Lender pursuant to in accordance with Section 2.16 prior to the Closing Date2.16(a).
(iiiii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the Board boards of Directors directors of each of the Company Borrower and each Guarantor approving the execution and delivery of this Agreement and the Noteseach other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary corporate constitutive action and, if any, material governmental and governmental approvalsother third party approvals and consents, if any, with respect to this Agreement and the Notes.
(iii) A certificate of a Responsible Officer of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and Agreement, the other documents to be delivered hereunder, Transactions and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state Governmental Authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state Governmental Authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, New York, counsel to the Companyeach other Loan Document.
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer A copy of the Borrower certifying that the Borrower charter or other constitutive document of each Loan Party and its Subsidiaries on each amendment thereto, certified (as of a consolidated basis after giving effect date reasonably acceptable to the Transactions are solventAdministrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) (x) at least three days prior to A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date all documentation (the statements made in which certificate shall be true on and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing as of the Company at least ten Business Days prior Closing Date), certifying as to (A) the Closing Date andaccuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party 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(a)(iv) 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 such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Dana Holding Corp)
Conditions Precedent to the Closing Date. The obligations This Agreement shall become effective on and as of the Lenders first date (the "Closing Date") on which the following conditions precedent have been satisfied (and the obligation of each Lender to make the Advances hereunder shall be is subject to the following satisfaction of such conditions having been satisfied precedent before or waived (concurrently with the first such date on which each of the following conditions have been satisfied or waived, the “Closing Date”):
(a) Since November 30, 2023, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Administrative Agent shall have received for the account of each Lender a certificate signed by a Responsible Officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent FFH shall have received on or before the Closing Date copies of the following, each dated the Closing Datesuch day (unless otherwise specified), in form and substance reasonably satisfactory to the AgentFFH (unless otherwise specified) and in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement from each Credit Party.
(ii) The Notes payable to the order of the Lenders to the extent requested by any Lender pursuant to in accordance with Section 2.16 prior to the Closing Date2.09.
(iiiii) Certified copies of the resolutions of the Board boards of Directors directors or shareholder(s) of each of the Company Borrowers and each Primary Guarantor approving the execution and delivery of this Agreement and the Noteseach other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary corporate constitutive action and, if any, material governmental and governmental approvalsother third party approvals and consents, if any, with respect to the Reorganization Plan, this Agreement and the Noteseach other Loan Document.
(iiiiv) A copy of the charter or other constitutive document of each Borrower and each Primary Guarantor and each amendment thereto, certified (as of a date reasonably acceptable to FFH) by the Secretary of State of the jurisdiction (or other Governmental Authority, as applicable) of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(v) A certificate of each Borrower and each Primary Guarantor signed on behalf of such Credit Party by a Responsible Officer or its secretary, dated the Closing Date (the statements made in which certificate shall be true on and as of the Company Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Credit Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Credit Party 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(a)(iv) 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 such Credit Party; and (D) the absence of any event occurring and continuing, or resulting from the Advance or the application of proceeds, if any, therefrom, that would constitute a Default.
(vi) A certificate of the Secretary or an Assistant Secretary or other appropriate officer or manager of each Borrower and each Primary Guarantor certifying the names and true signatures of the officers of the Company such Credit Party authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state Governmental Authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state Governmental Authority of the Company’s jurisdiction of incorporation.
(ivvii) A customary opinion The Administrative Agent and FFH shall have received (A) a weekly cash bankruptcy budget for the 13-week period from the commencement of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLPthe Cases, New York, counsel prepared by the Credit Parties and in form and substance acceptable to the CompanyFFH in its sole discretion (the "Interim DIP Budget") and (B) draft 2008 audited consolidated financial statements of Parent and its Subsidiaries.
(vviii) A Notice of Borrowing for the Borrowing to be made on the Closing Date.
(b) The Administrative Agent and the Lenders shall have received a certificate, (i) satisfactory evidence of the entry of an order of the U.S. Bankruptcy Court substantially in the form of Exhibit E heretoC (the "Interim Order") approving, from among other things, the chief financial officer Loan Documents, granting the Superpriority Claim status and other Liens described in Section 4.01(m), providing for an intercreditor arrangement with the secured parties under the Existing Facilities and including granting of the Borrower certifying that adequate protection described therein and (ii) satisfactory evidence of the Borrower issuance of the Initial CCAA Order substantially in the form of Exhibit D.
(c) The Credit Parties shall be in compliance with the orders described in clause (b) above, which shall be in full force and its Subsidiaries on a consolidated basis after giving effect to and shall not have been vacated, reversed, modified, amended or stayed without the Transactions are solventprior written consent of the Required Lenders (which consent shall not be unreasonably withheld).
(vid) All of the "first day orders" (xincluding the Interim Order and the Initial CCAA Order) entered by the Bankruptcy Courts at least three days the time of the commencement of the Cases, related orders, and motions and other documents to be filed with and submitted to the U.S. Bankruptcy Court in connection with this Agreement shall be reasonably satisfactory in form and substance to FFH.
(e) No examiner with increased powers to operate the Credit Parties' material businesses or trustee, receiver, interim receiver or receiver and manager shall have been appointed with respect to any or all of the Credit Parties or their respective properties.
(f) The Borrowers shall have paid all fees of the Administrative Agent and the Lenders and all expenses of the Administrative Agent and the Lenders (including the accrued fees and expenses of counsel to the Administrative Agent and each Initial Lender) due and payable on or prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date andDate.
Appears in 1 contract
Conditions Precedent to the Closing Date. The obligations effectiveness of this Agreement, and the obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit, and the occurrence of the Closing Date, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Joint Lead Arrangers and the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) Notes payable to the order of the Lenders to make Advances hereunder the extent timely requested by such Lenders, pursuant to Section 2.16.
(ii) The Administrative Agent shall have received a copy of this Agreement duly executed and delivered by each party thereto.
(iii) Certified copies of (A) the resolutions of the board of directors or of the members or managers of the Borrower approving the execution, delivery and performance of this Agreement and each other Loan Document, and (B) all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to this Agreement and the other Loan Documents. 76 SDI – Credit Agreement
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation or organization of the Borrower, dated reasonably near the Closing Date, certifying (A) as to a true and correct copy of the charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”) of the Borrower and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to the Borrower’s Organizational Documents on file in such Secretary’s office, (2) if applicable, the Borrower has paid all franchise taxes to the date of such certificate and (C) the Borrower is duly incorporated or organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization.
(v) A certificate of the Borrower, signed on behalf of the Borrower by a Responsible Officer, dated the date of the Closing Date (the statements made in which certificate shall be subject true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the following conditions having been satisfied Organizational Documents of the Borrower since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(iv), (B) a true and correct copy of the bylaws or waived (operating agreement, as applicable, of the first such Borrower as in effect on the date on which each the resolutions referred to in Section 3.01(a)(iii) were adopted and on the date of the following conditions Closing Date, (C) the due incorporation/organization and good standing or valid existence of the Borrower as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of the Borrower, (D) (x) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Closing Date and (y) the absence of any event occurring and continuing, or resulting from the Closing Date, that constitutes a Default and (E) the current Debt Ratings.
(vi) A certificate of a Responsible Officer of the Borrower certifying the names and true signatures of the officers of the Borrower 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.
(vii) A favorable opinion of Bxxxxxx XxXxxxx, LLP counsel for the Borrower, in substantially the form of Exhibit D hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request.
(viii) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been satisfied or waived, the “Closing Date”):appointed as Process Agent under Section 8.12 hereof.
(ab) Since November 30There has been no event or condition since December 31, 2023, there has not been any effect, change, event, circumstance, condition, occurrence or development 2022 that has had or would could be reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. 77 SDI – Credit Agreement
(c) There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document, and there shall have been no adverse change in the status, or financial effect on, the Borrower or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(bd) The Company Borrower shall have paid on (i) all accrued fees of the Joint Lead Arrangers, the Administrative Agent and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and the Administrative Agent, and local counsel to the Lender Parties), and (ii) all accrued and unpaid interest, fees, expenses, and reimbursement Obligations pursuant to the terms of the Existing Credit Agreement or otherwise due in respect of the Existing Credit Facilities.
(e) All advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full. The commitments under the Existing Credit Agreement shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Administrative Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Administrative Agent), and all guaranties, if any, supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated.
(f) The Administrative Agent and the Lender Parties shall have received, at least three (3) Business Days prior to the Closing Date, an executed Certificate of Beneficial Ownership (in form and substance acceptable to the Administrative Agent and each Lender Party), and shall have received, at least three (3) Business Days prior to the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced other documentation and other information requested at least three business seven (7) days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a Responsible Officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, in form and substance reasonably satisfactory to the Agent:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of a Responsible Officer of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state Governmental Authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state Governmental Authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, New York, counsel to the Company.
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and.
Appears in 1 contract
Conditions Precedent to the Closing Date. The obligations effectiveness of this Agreement and the Lenders agreement of each Lender to make Advances hereunder shall the Initial Term Loans requested to be made on the Closing Date is subject to the following conditions having been satisfied satisfaction of, or waived (waiver in accordance with Section 10.01, prior to or substantially concurrently with the first making of such date Initial Term Loans on which each the Closing Date of the following conditions have been satisfied or waived, the “Closing Date”precedent (unless characterized as post-closing obligations pursuant to Section 6.17 and set forth on Schedule 6.17):
(a) Since November 30The Administrative Agent’s receipt of executed counterparts of (i) this Agreement from the Borrower and (ii) the Guaranty from each Guarantor identified on Schedule 1.01(d), 2023each of which shall be originals or telecopies or .pdf format files unless otherwise specified, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed properly executed by a Responsible Officer of the Companysigning Loan Party, dated each in form and substance reasonably satisfactory to each Lender. If requested by a Lender, the Closing DateAdministrative Agent shall have received, certifying to for the occurrence or satisfaction clauses (a) account of such Lender, an executed copy of the appropriate Note for such Lender, in each case in the amount, maturity and (h) as otherwise provided herein; provided that the original of this Section 3.02 substantially concurrently with any such executed Note shall be delivered by the occurrence of Borrower promptly after the Closing Date.
(db) The Agent shall have received on or before Subject to Section 6.17, the Closing Date copies Administrative Agent’s receipt of each of the followingagreements, documents, instruments and other items set forth on the closing checklist attached hereto as Schedule 4.01 (the “Closing Checklist”), each of which shall be originals or telecopies or .pdf format files unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or any earlier date specified in the Closing Checklist or, in the case of certificates of governmental officials and any resolutions of any board of directors or similar governing body of any Loan Party, a recent date before the Closing Date, ) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of a Responsible Officer of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state Governmental Authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state Governmental Authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, New York, counsel to the Company.
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Sunedison, Inc.)
Conditions Precedent to the Closing Date. The obligations obligation of the Lenders each Lender to make Advances hereunder shall be available its respective Commitment is subject to the following conditions having been satisfied or waived (the first such date on which satisfaction of each of the following conditions have been satisfied or waived, the “Closing Date”):precedent:
(a) Since November The Agents and the Lenders have received each of the following, in each case in form and substance satisfactory to the Agents and the Lenders:
(i) each Credit Document required by the Lenders in their sole discretion to be delivered on the Closing Date, executed and delivered by each of the parties thereto;
(ii) judgment lien, tax lien and UCC searches, and such other searches of the records of Government Instrumentalities as the Lenders may require, performed with respect to Borrower and the Affiliates in all relevant jurisdictions;
(iii) the legal opinion of Borrower's Counsel in the form of Exhibit 3.1
(a) (iii);
(iv) the legal opinion of Lenders' Counsel;
(v) such other legal opinions as the Agents or the Lenders may require;
(vi) certified copies of:
(A) the Organizational Documents of Guarantor, NEO, Borrower and the Affiliates;
(B) good standing certificates with respect to Guarantor, NEO, Borrower and the Affiliates dated no earlier than thirty (30) days before the Closing Date;
(C) incumbency certificates for the signatories of Guarantor, 2023NEO, there has not Borrower and the Affiliates and resolutions of Guarantor, NEO, Borrower and the Affiliates approving the Documents and the transactions contemplated thereby;
(D) unaudited financial statements of NEO for the fiscal year ended December 31, 1996 and all subsequent quarterly financial statements available on the Closing Date, audited financial statements of Borrower for the fiscal year ended December 31, 1996 and all subsequent quarterly financial statements available on the Closing Date, and pro forma balance sheets of the Affiliates as of the Closing Date; and
(E) all Project Documents in effect on the Closing Date and which are listed in Schedule I as having been any executed;
(vii) certificates of officers of Guarantor, NEO, Borrower and each Affiliate certifying that:
(A) all Documents executed by such Person on or prior to the Closing Date are in full force and effect, changesuch Person and, eventto the best knowledge of such Person after due inquiry, circumstancethe Project Parties are in compliance with all covenants and provisions thereof, conditionand no breach or event of default (or any event that would become a breach or event of default with the giving of notice or passage of time or both) has occurred and is continuing under any such Document;
(B) all representations and warranties of such Person contained in the Documents are true, occurrence correct and complete;
(C) all financial statements and information relating to such Person provided to the Lenders, taken as a whole, are true, correct and complete; each balance sheet fairly presents the financial position of the Person to which it relates as at the date indicated and was prepared in accordance with GAAP except as specifically noted therein; no material adverse change in the condition or development that operation, financial or otherwise, of such Person has occurred since July 31, 1997; and the financial statements (including any notes thereto) provided to the Lenders disclose all liabilities, contingent or otherwise, of such Person; and
(D) no act, event or circumstance has occurred with respect to the Projects or such Person or, to the best knowledge of such Person after due inquiry, the Project Parties which has had or would could have a Material Adverse Effect or a material adverse effect on the availability or pricing of financing for the Projects;
(viii) [RESERVED]
(ix) copies of all Required Approvals obtained on or prior to the Closing Date by or on behalf of Borrower or the Affiliates;
(x) a written report of the Engineer opining favorably, to the best of the Engineer's knowledge and except as otherwise noted in such report, on the relevant technical aspects of the Projects, except as otherwise noted in the report, including without limitation historical and projected Project availability and useful life, projected operation and maintenance costs (including, that the costs of operation and maintenance of the Projects, as detailed in the Closing Pro Forma are consistent with market practice), maintenance plans and schedules, terms of the Project Documents, Required Approvals, expected landfill gas production, expected availability, net capacity degradation (if any), the ability of the Projects to comply with all conditions contained in the Required Approvals, that there is no event or anticipated event that could reasonably be expected to have, either individually or cause any Project not to be completed by the date contemplated in the aggregateConstruction and Draw Schedules and landfill gas collection efficiencies;
(xi) the favorable written report of the Energy Consultant confirming the energy price and capacity payment assumptions contained in the Closing Pro Forma; and
(xii) the favorable written report of the Insurance Consultant confirming compliance by Borrower and the Affiliates, a Material Adverse Effectexcept as noted therein, with all requirements relating to Required Insurance contained in this Agreement.
(b) The Company shall No act, event or circumstance has occurred (i) with respect to the Projects, Guarantor, NEO, Borrower or the Affiliates, (ii) in the international financial markets or (iii) otherwise which has had or could reasonably be expected to have paid a material adverse effect on the Closing Date all fees required to be paid pursuant to availability or in connection with this Agreement, to pricing of financing for the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities)Projects.
(c) On All Taxes, fees and expenses required to be paid by Borrower and the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a Responsible Officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received Affiliates on or before the Closing Date copies have been paid.
(d) Guarantor, NEO, Borrower and the Affiliates have appointed the Process Agent to serve as process agent until the Term Loan Maturity Date and the Process Agent has accepted such appointment in writing, and a copy of such acceptance has been delivered to the Agent.
(e) The Lenders have prepared and analyzed the Closing Pro Forma incorporating the results of the followingLenders' due diligence based on information provided by Borrower and the reports of the Lenders' counsel, each dated the Closing DateEngineer and the Energy Consultant and the terms and conditions imposed by the Project Documents, showing annual Net Operating Cash available for debt service on the Term Loans sufficient (in form the Lenders' sole determination) to produce an annual debt service coverage ratio of at least 1.5 to 1 (on a per Project basis as well as for all Projects taken together) and substance reasonably for Borrower to comply with the financial covenants of this Agreement, including maintenance of the Minimum Coverage Ratio.
(f) The Organizational Documents of Borrower and the Affiliates contain bankruptcy-remote provisions satisfactory to the Agent:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing DateLenders.
(iig) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement All Documents executed by Guarantor, NEO, Borrower and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of a Responsible Officer of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state Governmental Authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state Governmental Authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, New York, counsel to the Company.
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries Affiliates on a consolidated basis after giving effect to the Transactions are solvent.
(vi) (x) at least three days or prior to the Closing Date are in full force and effect, Guarantor, NEO, Borrower, the Affiliates and the Project Parties are in full compliance with all documentation covenants and provisions thereof, and no breach or event of default (or any event that could become a breach or event of default with the giving of notice or passage of time or both) has occurred and is continuing under any such Document.
(h) All representations and warranties of Guarantor, NEO, Borrower and the Affiliates contained in the Documents are true, correct and complete.
(i) There is no pending or threatened litigation, investigation or other information regarding proceeding (i) relating to any Project (including without limitation relating to the Company requested release of any Hazardous Substance or any contingent liability of Borrower, the Affiliates, the Project Parties or the Projects in connection with applicable “know your customer” and anti-money laundering rules and regulationsthe release of any Hazardous Substance) or (ii) that could materially adversely affect the condition (financial or otherwise) of Guarantor, including NEO, Borrower, the Patriot ActAffiliates or the Project Parties or their ability to perform under the documents, other than the bankruptcy proceedings relating to the extent reasonably requested in writing EPC Contractor of the Company at least ten Business Days prior to Edgeboro Project and the pre-petition liens relating thereto.
(j) A First-Priority security interest in the Collateral that is the subject of the Security Documents in effect as of the Closing Date andhas been created and perfected, and will continue to be perfected, in favor of the Lenders in all relevant jurisdictions, and there are no Liens on the Collateral other than Permitted Liens. The Term Agent has received all items of Collateral in which a security interest is perfected by possession, including stock certificates and stock powers relating thereto.
(k) No Project has suffered a material loss (unless such Loss has been remedied to the satisfaction of the Lenders) or is subject to pending or threatened condemnation or appropriation proceedings.
(l) The operations of Borrower, the Projects and the Affiliates comply and will comply, in all respects deemed material by the Lenders (including without limitation that the Projects will be able to meet the financial and construction progress projections contained in the Closing Pro Forma), with all Applicable Laws and Required Approvals.
(m) No order, judgment or decree of any Government Instrumentality enjoins or restrains any Agent or any Lender from entering into and performing its obligations under this Agreement.
Appears in 1 contract
Samples: Construction, Acquisition and Term Loan Agreement (NRG Energy Inc)
Conditions Precedent to the Closing Date. The obligations obligation of the Lenders each Lender to make Advances hereunder an Advance (including a Swing Line Advance), and the obligation of each Issuing Bank to Issue each Letter of Credit, in each case, on the Closing Date shall be subject to satisfaction of each of the conditions set forth in Section 5.03 below and the following conditions having been satisfied precedent in each case on or waived (the first such date on which each of the following conditions have been satisfied or waivedprior to December 31, the “Closing Date”):2020:
(a) Since November 30, 2023, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse EffectThe Effective Date shall have occurred.
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a Responsible Officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, following in form and substance reasonably satisfactory to the Agent:
(i) The Notes notes to the order of the Lenders to the extent requested by any Lender no later than three Business Days prior to the Closing Date pursuant to Section 2.16 4.04(d).
(ii) Duly executed copies of (A) the U.S. Security Agreement, to be dated the Closing Date, and all exhibits and schedules thereto, (B) the Canadian Security Agreements, to be dated the Closing Date (provided that the deed of movable hypothec may be dated prior to the Closing Date), and all exhibits and schedules thereto, and (C) the Intellectual Property Security Agreements, to be dated the Closing Date in form and substance reasonably satisfactory to Agent, and all exhibits and schedules thereto.
(iiiii) Certified copies of the resolutions of the Board of Directors (or persons performing similar functions) of each Loan Party approving transactions of the Company approving this Agreement type by each of the Loan Documents to which it is or is to be a party on the Closing Date (or a certificate of the Secretary or an Assistant Secretary of Lead Borrower certifying such resolutions delivered on the Effective Date pursuant to Section 5.01(a)(ii) remain in full force and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Noteseffect).
(iiiiv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan Party listing (or, as regards a Canadian Guarantor, a certificate of the Secretary or an Assistant Secretary of each Canadian Guarantor certifying a copy of) the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Party and each amendment thereto on file in the office of such Secretary of State (or such Governmental Authority) (or certifying that there have been no changes to such Person’s certificate or articles of incorporation (or similar constitutive document) since the Effective Date) and (A) certifying that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in such office, (B) as regards U.S. Loan Parties, certifying if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) as regards U.S. Loan Parties, certifying that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. The Canadian Guarantors shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Guarantor (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Guarantor).
(v) A certificate of a Responsible Officer the Secretary or an Assistant Secretary of the Company each Loan Party certifying the names and true signatures of the officers of the Company such Loan Party authorized to sign this Agreement and the Notes each Loan Document to which it is a party and the other documents to be delivered hereunderhereunder (or certifying no change to the certificate delivered on the Effective Date pursuant to Section 5.01(a)(v)).
(vi) A favorable opinion of Xxxxxxxx, Xxxxxx, Xxxxx & Xxxx, XxXxxxxx Xxxxxxxx LLP and attaching Xxxxxx, Xxxxxxxx & Xxxxxxx LLP, special counsel to the Loan Parties, in each case in a form reasonably acceptable to the Agent and addressed to the Agent, the Issuing Banks and each of the Lenders.
(vii) Except to the extent that the Agent reasonably agrees that such conditions may be satisfied within a post-closing period to be set forth on Schedule 7.01(p) (which may be supplemented on the Closing Date with the approval of the Agent, not to be unreasonably withheld, conditioned or delayed), (1) the Perfection Certificate and all agreements, documents, filings, recordations and lien searches reasonably necessary or requested by the Agent in connection with the creation, perfection and priority of the Liens in favor of the Agent, for the benefit of the Secured Parties, securing the Obligations shall have been duly executed, and/or made; (2) all filing and recording fees and taxes shall have been duly paid and (3) the Agent shall be satisfied with the amount, types and terms and conditions of all insurance maintained by Holdings and its Subsidiaries.
(viii) A certificate of a Responsible Officer of Lead Borrower to the effect set forth in Section 5.02(c), 5.02(d), 5.02(g), 5.03(a) and 5.03(b) below.
(ix) A certificate of the chief financial officer of Holdings to the effect that, after giving effect to the Transactions and the incurrence of any Revolving Credit Advances made and Letters of Credit issued on the Closing Date, (x) the charter Holdings and by-laws of the Company certifiedits Subsidiaries, to the extent applicableon a Consolidated basis, as of a recent date by the applicable state Governmental Authority are Solvent and (y) a good standing certificate (to the extent such concept exists) from the applicable state Governmental Authority each of the Company’s jurisdiction of incorporationCanadian Guarantors, on an individual basis, is Solvent.
(ivc) A customary opinion There shall not have occurred since December 31, 2019 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change.
(d) There shall not be any action, suit, investigation or proceeding pending or, to the knowledge of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLPthe Loan Parties, New Yorkthreatened in any court or before any arbitrator or Governmental Authority that is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect.
(e) Lead Borrower shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the CompanyAgent).
(vf) The Refinancing shall have been (or substantially concurrently shall be) consummated.
(g) After giving effect to (i) any Revolving Credit Advance funded on the Closing Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Closing Date, Availability plus the amount of cash and Cash Equivalents of Lead Borrower and its Restricted Subsidiaries shall be not less than $150.0 million.
(h) The Agent shall have received a certificateBorrowing Base Certificate dated the Closing Date, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect relating to the Transactions are solventFiscal Month ended on October 30, 2020, and executed by a Responsible Officer of Lead Borrower.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Samples: Revolving Credit Agreement (Rayonier Advanced Materials Inc.)
Conditions Precedent to the Closing Date. The obligations This Agreement shall become effective on and as of the Lenders first date (the "Closing Date") on which the following conditions precedent have been satisfied (and the obligation of each Lender to make the Advances hereunder shall be is subject to the following satisfaction of such conditions having been satisfied precedent before or waived (concurrently with the first such date on which each of the following conditions have been satisfied or waived, the “Closing Date”):
(a) Since November 30, 2023, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Administrative Agent shall have received for the account of each Lender a certificate signed by a Responsible Officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent FFH shall have received on or before the Closing Date copies of the following, each dated the Closing Datesuch day (unless otherwise specified), in form and substance reasonably satisfactory to the AgentFFH (unless otherwise specified) and in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement from each Credit Party.
(ii) The Notes payable to the order of the Lenders to the extent requested by any Lender pursuant to in accordance with Section 2.16 prior to the Closing Date2.09.
(iiiii) Certified copies of the resolutions of the Board boards of Directors directors or shareholder(s) of each of the Company Borrowers and each Primary Guarantor approving the execution and delivery of this Agreement and the Noteseach other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary corporate constitutive action and, if any, material governmental and governmental approvalsother third party approvals and consents, if any, with respect to the Reorganization Plan, this Agreement and the Noteseach other Loan Document.
(iiiiv) A copy of the charter or other constitutive document of each Borrower and each Primary Guarantor and each amendment thereto, certified (as of a date reasonably acceptable to FFH) by the Secretary of State of the jurisdiction (or other Governmental Authority, as applicable) of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(v) A certificate of each Borrower and each Primary Guarantor signed on behalf of such Credit Party by a Responsible Officer or its secretary, dated the Closing Date (the statements made in which certificate shall be true on and as of the Company Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Credit Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Credit Party 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(a)(iv) 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 such Credit Party; and (D) the absence of any event occurring and continuing, or resulting from the Advance or the application of proceeds, if any, therefrom, that would constitute a Default.
(vi) A certificate of the Secretary or an Assistant Secretary or other appropriate officer or manager of each Borrower and each Primary Guarantor certifying the names and true signatures of the officers of the Company such Credit Party authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state Governmental Authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state Governmental Authority of the Company’s jurisdiction of incorporation.
(ivvii) A customary opinion The Administrative Agent and FFH shall have received (A) a weekly cash bankruptcy budget for the 13-week period from the commencement of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLPthe Cases, New York, counsel prepared by the Credit Parties and in form and substance acceptable to the CompanyFFH in its sole discretion (the "Interim DIP Budget") and (B) draft 2008 audited consolidated financial statements of Parent and its Subsidiaries.
(vviii) A Notice of Borrowing for the Borrowing to be made on the Closing Date.
(b) The Administrative Agent and the Lenders shall have received a certificate, (i) satisfactory evidence of the entry of an order of the U.S. Bankruptcy Court substantially in the form of Exhibit E heretoC (the "Interim Order") approving, from among other things, the chief financial officer Loan Documents, granting the Superpriority Claim status and other Liens described in Section 4.01(m), providing for an intercreditor arrangement with the secured parties under the Existing Facilities and including granting of the Borrower certifying that adequate protection described therein and (ii) satisfactory evidence of the Borrower issuance of the Initial CCAA Order substantially in the form of Exhibit D.
(c) The Credit Parties shall be in compliance with the orders described in clause (b) above, which shall be in full force and its Subsidiaries on a consolidated basis after giving effect to and shall not have been vacated, reversed, modified, amended or stayed without the Transactions are solventprior written consent of the Required Lenders (which consent shall not be unreasonably withheld).
(vid) All of the "first day orders" (xincluding the Interim Order and the Initial CCAA Order) entered by the Bankruptcy Courts at least three days prior the time of the commencement of the Cases, related orders, and motions and other documents to be filed with and submitted to the Closing Date all documentation and other information regarding the Company requested U.S. Bankruptcy Court in connection with applicable “know your customer” this Agreement shall be reasonably satisfactory in form and anti-money laundering rules substance to FFH.
(e) No examiner with increased powers to operate the Credit Parties' material businesses or trustee, receiver, interim receiver or receiver and regulations, including the Patriot Act, manager shall have been appointed with respect to the extent reasonably requested in writing any or all of the Company at least ten Business Days prior to the Closing Date andCredit Parties or their respective properties.
Appears in 1 contract
Samples: Senior Secured Superpriority Debtor in Possession Credit Agreement (AbitibiBowater Inc.)
Conditions Precedent to the Closing Date. The obligations This Agreement shall become effective on and as of the Lenders first date on which the following conditions precedent have been satisfied (and the obligation of each Lender to make Advances hereunder shall be an Advance is subject to the following satisfaction of such conditions having been satisfied precedent before or waived (concurrently with the first such date on which each of the following conditions have been satisfied or waived, the “Closing Date”):
(a) Since November 30, 2023, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a Responsible Officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Administrative Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Datesuch day (unless otherwise specified), in form and substance reasonably satisfactory to the AgentLenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement and the Closing Date Intercreditor Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested by any Lender pursuant to in accordance with Section 2.16 prior to the Closing Date2.16(a).
(iiiii) The Collateral Documents, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the Board boards of Directors directors or the sole members, as applicable, of each of the Company Borrower and each Guarantor approving the execution and delivery of this Agreement and the Noteseach other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary corporate constitutive action and, if any, material governmental and governmental approvalsother third party approvals and consents, if any, with respect to this Agreement Agreement, the other Transactions and the Noteseach other Loan Document.
(iiiv) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Company Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party 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(a)(iv) 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 such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party on and as of the Closing Date; (E) the absence of any Default or Event of Default occurring and continuing, or resulting from entry into this Agreement or the transactions contemplated hereby; and (F) the absence of a Material Adverse Effect since December 31, 2019.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of the Company such Loan Party authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state Governmental Authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state Governmental Authority of the Company’s jurisdiction of incorporation.
(ivviii) A customary opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLPCertificates, New York, counsel to the Company.
(v) The Agent shall have received a certificate, in substantially in the form of Exhibit E hereto, from I attesting to the chief financial officer Solvency of the Borrower certifying that the Borrower and its Subsidiaries Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions are solventTransactions), from its Chief Financial Officer or other financial officer.
(viix) [Reserved].
(x) A favorable opinion of (A) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) Xxxxxxxx, Loop & Xxxxxxxx, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request.
(xi) Since December 31, 2019, there shall not have occurred a Material Adverse Effect.
(xii) All costs, fees and expenses (including, without limitation, legal fees and expenses for which the Borrower has received an invoice at least three days one (1) day prior to the Closing Date Date) and other compensation contemplated by the Fee Letters and payable to the Agents or the Lenders shall have been paid in full in cash to the extent due and payable.
(xiii) The Lenders shall have received, all documentation and other information regarding the Company requested in connection with required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsregulations and Beneficial Ownership Regulation, including without limitation, the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and.
Appears in 1 contract
Samples: 364 Day Bridge Facility and Guaranty Agreement (Dana Inc)
Conditions Precedent to the Closing Date. The obligations obligation of the Lenders Lender to make Advances hereunder the Initial Term Loan shall be subject to the following conditions having precedent:
(a) this Agreement has been satisfied duly executed and delivered by the Borrower, each Guarantor and the Lender;
(b) the Closing Date shall occur on or waived before December 31, 2014;
(the first such date on which c) Lender shall have received each of the following conditions have been satisfied or waived, the “Closing Date”):
(a) Since November 30, 2023, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a Responsible Officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Datedocuments, in form and substance reasonably satisfactory to the AgentLender, duly executed (to the extent applicable), and each such document shall be in full force and effect:
(i) The the Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank;
(ii) one or more Term Notes aggregating to the Lenders principal amount of the Initial Term Loan;
(iii) a certificate from the Secretary of each Credit Party (A) attesting to the extent requested resolutions of such Credit Party’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party is a party, (B) authorizing specific officers of such Credit Party to execute the same, and (C) attesting to the incumbency and signatures of such specific officers of such Credit Party;
(iv) copies of each Credit Party’s Governing Documents, as amended, modified, or supplemented to the Funding Date, certified by any Lender pursuant the Secretary of such Credit Party;
(v) a certificate of status with respect to Section 2.16 Borrower, dated not earlier than 10 days prior to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction; and
(vi) a reporting addendum (the “Reporting Addendum”) containing the information required by Sections 5.3, 5.5(a), 5.5(b), 5.6(b), 5.8, 5.12, 5.15, 5.17 and 7.1.
(iid) Certified copies The Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.5, the form and substance of which shall be satisfactory to The Lender;
(e) Borrower shall have paid all Lender Expenses incurred in connection with the transactions evidenced by this Agreement;
(f) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower or its Subsidiaries of the resolutions Loan Document or with the consummation of the Board of Directors of transactions contemplated thereby;
(g) the Company approving representations and warranties contained in this Agreement and the Notes, other Loan Documents shall be true and of correct in all documents evidencing other necessary corporate action material respects on and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of a Responsible Officer as of the Company certifying the names date of such extension of credit, as though made on and true signatures as of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching such date (x) the charter and by-laws of the Company certified, except to the extent applicablethat such representations and warranties relate solely to an earlier date);
(h) no Default or Event of Default shall have occurred and be continuing on the date of such extension of credit, as nor shall either result from the making thereof;
(i) no injunction, writ, restraining order, or other order of a recent date any nature restricting or prohibiting, directly or indirectly, the extending of such credit shall have been issued and remain in force by the applicable state any Governmental Authority and (y) a good standing certificate (to against any Credit Party, the extent such concept exists) from the applicable state Governmental Authority Lender, or any of the Company’s jurisdiction of incorporation.their Affiliates; and
(ivj) A customary opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, New York, counsel to the Company.
(v) The Agent no Material Adverse Change shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solventoccurred.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Samples: Loan and Security Agreement (Atlanticus Holdings Corp)
Conditions Precedent to the Closing Date. The obligations obligation of the Lenders each Lender to make Advances hereunder shall be Loans and the effectiveness of this Agreement are subject to the following conditions having been satisfied or waived (the first such date on which prior satisfaction of each of the following conditions have been satisfied conditions, in each case to the satisfaction of the Administrative Agent and each of the Lenders (unless waived pursuant to Section 9.12(a)) on or waived, prior to the “Closing Date”)::
(a) Since November 30Delivery to the Agents of each of the following Financing Documents, 2023each duly executed and delivered by the parties thereto:
(i) this Agreement;
(ii) the CADA;
(iii) the Member Pledge;
(iv) the Security Agreement;
(v) the Fee Letters;
(vi) the Tax Equity Required Consents (if any);
(vii) the LLC Agreements (amended and restated to comply with the provisions of this Agreement, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in as necessary); and
(viii) the aggregate, Notes (if requested by a Material Adverse EffectLender).
(b) The Company shall have paid on Each representation and warranty set forth in Section 4.1 is true and correct in all material respects as of the Closing Date Date, other than those representations and warranties which are modified by materiality by their own terms, which shall be true and correct in all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to respects as of the Closing Date (except unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilitiessuch earlier date).
(c) On As of the Closing Date, the Agent no event shall have received occurred and be continuing or would result from the consummation of the transactions contemplated by this Agreement on the Closing Date that would constitute a Default or an Event of Default under this Agreement.
(d) Delivery to the Administrative Agent and each Lender of the following:
(i) an omnibus secretary’s certificate, satisfactory in form and substance to the Administrative Agent, from Borrower Member, signed by an authorized Responsible Officer and dated as of the Closing Date, attaching and certifying as to the Organizational Documents of each Loan Party (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority), and attaching and certifying as to the resolutions of the governing body of each Loan Party, the good standing, existence or its equivalent of each Loan Party and of the incumbency of one or more Responsible Officers of each Loan Party; *** Confidential treatment has been requested for the account of each Lender a portions marked by “***”. The confidential redacted portions have been omitted and filed separately with the Commission
(ii) an certificate signed executed by a Responsible Officer of the CompanyBorrower certifying to (A) the representations and warranties made by each Loan Party in each Financing Document to which it is a party being true and correct in all material respects as of the Closing Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date), (B) the absence of a Default or an Event of Default, (C) the absence of any (x) material breach by any Loan Party of any Material Project Documents to which it is a party or (y) breach of any Other Documents that could have a Material Adverse Effect, (D) the absence of any Bankruptcy Event with respect to any Loan Party and any Subject Fund in which such Loan Party owns an interest, and (E) the satisfaction (or waiver by the Administrative Agent and each Lender) of all conditions precedent to the Closing Date in accordance with the terms and conditions hereof;
(iii) a certificate executed by a Responsible Officer of the Borrower certifying to (A) the absence of a Default or an Event of Default with respect to Borrower Member or Vivint Solar Parent, (B) the absence of any Bankruptcy Event with respect to Borrower Member or Vivint Solar Parent;
(iv) an opinion, dated as of the Closing Date, certifying of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing DateLoan Parties, in form and substance reasonably satisfactory acceptable to the Agent:Agents and each Lender; and
(iv) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to an opinion, dated as of the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special bankruptcy counsel to the Loan Parties, in form and substance reasonably acceptable to the Agents and each Lender.
(iie) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement The Collateral Documents shall have been duly executed and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of a Responsible Officer of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents delivered by each Loan Party that is to be delivered hereundera party thereto, and attaching together with (x) certificates representing the charter and by-laws Equity Interests of the Company certifiedBorrower, to the extent applicableEquity Interests of each Managing Member and each Equity Interest owned by any Managing Member in another Person accompanied, as of a recent date in each case, by the applicable state Governmental Authority undated stock powers executed in blank and (y) a good standing certificate (documents and instruments to be recorded or filed that the extent such concept exists) from Administrative Agent may deem reasonably necessary to perfect, record and file in the applicable state Governmental Authority of the Company’s jurisdiction of incorporationappropriate jurisdictions.
(iv) A customary opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, New York, counsel to the Company.
(vf) The Administrative Agent and the Collateral Agent shall have received a certificate, substantially (A) searches of UCC filings in the form jurisdiction of Exhibit E heretoincorporation or formation, from as applicable, of each Loan Party and each jurisdiction where a filing would need to be made in order to perfect the chief financial officer security interest of the Borrower certifying Collateral Agent (for the benefit of the Secured Parties) in the Collateral, (B) copies of the financing statements on file in such jurisdictions and evidence that the Borrower no Liens exist other than Permitted Liens and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent(C) copies of tax lien, judgment and bankruptcy searches in such jurisdictions.
(vig) (x) at least three days prior The UCC financing statements relating to the Collateral being secured as of the Closing Date all documentation shall have been duly filed in each office and other information regarding in each jurisdiction where required in order to create and perfect the Company first Lien and security interest set forth in the Collateral *** Confidential treatment has been requested in connection for the portions marked by “***”. The confidential redacted portions have been omitted and filed separately with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date andCommission
Appears in 1 contract
Samples: Loan Agreement (Vivint Solar, Inc.)
Conditions Precedent to the Closing Date. The obligations This Agreement shall become effective on and as of the Lenders to make Advances hereunder shall be subject to the following conditions having been satisfied or waived first date (the first such date on which each of the following conditions have been satisfied or waived, the “Closing Date”) on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date):
(a) Since November 30, 2023, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a Responsible Officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Administrative Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Datesuch day (unless otherwise specified), in form and substance reasonably satisfactory to the AgentLenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender:
(i) Duly executed counterparts of this Agreement.
(ii) The Notes payable to the order of the Lenders to the extent requested by any Lender pursuant to in accordance with Section 2.16 prior to the Closing Date2.16(a).
(iiiii) Security Agreement, together with evidence that all other action that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.
(iv) Certified copies of the resolutions of the Board boards of Directors directors of each of the Company Borrower and each Guarantor approving the execution and delivery of this Agreement and the Noteseach other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary corporate constitutive action and, if any, material governmental and governmental approvalsother third party approvals and consents, if any, with respect to this Agreement Agreement, the other Transactions and the Noteseach other Loan Document.
(iiiv) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Company Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party 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(a)(iv) 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 such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party 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 and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (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 Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2012.
(vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of the Company such Loan Party authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state Governmental Authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state Governmental Authority of the Company’s jurisdiction of incorporation.
(ivviii) A customary opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLPCertificates, New York, counsel to the Company.
(v) The Agent shall have received a certificate, in substantially in the form of Exhibit E hereto, from L attesting to the chief financial officer Solvency of the Borrower certifying that and each Guarantor, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer.
(ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of the Borrower and its Subsidiaries on a consolidated basis after giving effect to for each of the Transactions are solvent.
(vi) (x) at least three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date all documentation Date; and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, (ii) customary unaudited pro forma financial statements as to the Borrower and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by the Borrower dated May 29, 2013.
(x) To the extent applicable, 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 any Existing Letter of Credit) to be issued, on the Closing Date.
(xi) A favorable opinion of (A) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably requested request (including as to Delaware corporate law matters), and (B) Xxxxxxxx, Loop & Xxxxxxxx, LLP, Michigan counsel to the Loan Parties, in writing substantially the form of Exhibit D-2 hereto and addressing such other matters as the Company Lenders may reasonably request.
(xii) Since December 31, 2012, there shall not have occurred a Material Adverse Effect.
(xiii) All costs, fees and expenses (including, without limitation, legal fees and expenses for which the Borrower has received an invoice at least ten Business Days one (1) day prior to the Closing Date andDate) and other compensation contemplated by the Engagement Letter, the Administrative Agent Fee Letter and the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Dana Holding Corp)
Conditions Precedent to the Closing Date. The obligations of This Agreement shall not become effective until the Lenders to make Advances hereunder shall be subject to the following conditions having been satisfied or waived (the first such date on which each of the following conditions have been is satisfied (or waived, the “Closing Date”):waived in accordance with Section 11.02).
(a) Since November 30, 2023, there The Administrative Agent (or its counsel) shall have received from each party thereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of this Agreement) that such party has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, signed a Material Adverse Effectcounterpart of this Agreement.
(b) The Company Lenders, the Administrative Agent, the Arrangers and each other Person entitled to the payment of fees or the reimbursement or payment of expenses, pursuant hereto or to those certain fee letters dated November 7, 2014, executed and delivered with respect to the credit facility provided for herein, shall have paid on the Closing Date received all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to by the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On including, without limitation, all fees owing on the Closing DateDate under Section 2.12(d) hereof), the Agent shall and all expenses for which invoices have received for the account of each Lender a certificate signed by a Responsible Officer of the Company, dated the Closing Date, certifying to the occurrence been presented on or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of before the Closing Date.
(dc) The Administrative Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, in form and substance reasonably satisfactory to the Agent:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date.
(ii) Certified certified copies of the resolutions of the Board of Directors of the Company each Loan Party approving this Agreement and the NotesAgreement, and of all documents evidencing other necessary corporate action and governmental approvals, if any, and regulatory approvals with respect to this Agreement and the NotesAgreement.
(iiid) A The Administrative Agent shall have received from each Loan Party, to the extent generally available in the relevant jurisdiction, a copy of a certificate or certificates of the Secretary of State (or other appropriate public official) of the jurisdiction of its incorporation, dated reasonably near the Closing Date, (i) listing the charters of each Loan Party, as the case may be, and each amendment thereto on file in such office and certifying that such amendments are the only amendments to each Loan Party’s charter, as the case may be, on file in such office, and (ii) stating, in the case of each Loan Party, that such Loan Party is authorized to transact business under the laws of the jurisdiction of its place of formation.
(i) The Administrative Agent shall have received a certificate or certificates of each of each Loan Party, signed on behalf of each Loan Party respectively, by a Secretary, an Assistant Secretary or a Responsible Officer thereof, dated the Closing Date, certifying as to (A) the absence of any amendments to the charter of such Loan Party, as the case may be, since the date of the Company certificates referred to in paragraph (d) above, (B) a true and correct copy of the bylaws of each Loan Party, as the case may be, as in effect on the Closing Date, (C) the absence of any proceeding for the dissolution or liquidation of the Borrower or any Guarantor, as the case may be, (D) the truth, in all material respects (except that in each case, such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by “materiality,” “Material Adverse Effect” or similar language in the text thereof), of the representations and warranties set forth in Section 4.01(a) through (p), inclusive, (r), (s) and (u), as though made on and as of the Closing Date, and (E) the absence, as of the Closing Date, of any Default or Event of Default; and (ii) each of such certifications shall be true.
(f) The Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of each Loan Party, as the Company case may be, authorized to sign sign, and signing, this Agreement and the Notes and the other documents Credit Documents to be delivered hereunder, and attaching (x) hereunder on or before the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state Governmental Authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state Governmental Authority of the Company’s jurisdiction of incorporationClosing Date.
(iv) A customary opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, New York, counsel to the Company.
(vg) The Administrative Agent shall have received from Xxxxxx & Xxxxxx LLP, counsel for the Loan Parties, a certificatefavorable opinion, substantially in the form of Exhibit E hereto, from B hereto and as to such other matters as any Lender through the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solventAdministrative Agent may reasonably request.
(vih) (x) The Administrative Agent and the Lenders shall have received, at least three ten business days prior to the Closing Date (or such later date approved by the Administrative Agent) all documentation and other information regarding that is required by the Company requested in connection with regulatory authorities under the applicable “know your customer” and anti-money money-laundering rules and regulations, including including, without limitation, the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and.
Appears in 1 contract
Samples: Revolving Credit Agreement (Columbia Pipeline Group, Inc.)
Conditions Precedent to the Closing Date. The obligations obligation of the Lenders each Lender to make Advances hereunder an Advance (including a Swing Line Advance), and the obligation of each Issuing Bank to Issue each Letter of Credit, in each case, on the Closing Date shall be subject to satisfaction of each of the conditions set forth in Section 5.03 below and the following conditions having been satisfied precedent in each case on or waived (the first such date on which each of the following conditions have been satisfied or waivedprior to December 31, the “Closing Date”):2020:
(a) Since November 30, 2023, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse EffectThe Effective Date shall have occurred.
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a Responsible Officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, following in form and substance reasonably satisfactory to the Agent:
(i) The Notes notes to the order of the Lenders to the extent requested by any Lender no later than three Business Days prior to the Closing Date pursuant to Section 2.16 4.04(d).
(ii) Duly executed copies of (A) the U.S. Security Agreement, to be dated the Closing Date, and all exhibits and schedules thereto, (B) the Canadian Security Agreements, to be dated the Closing Date (provided that the deed of movable hypothec may be dated prior to the Closing Date), and all exhibits and schedules thereto, and (C) the Intellectual Property Security Agreements, to be dated the Closing Date in form and substance reasonably satisfactory to Agent, and all exhibits and schedules thereto.
(iiiii) Certified copies of the resolutions of the Board of Directors (or persons performing similar functions) of each Loan Party approving transactions of the Company approving this Agreement type by each of the Loan Documents to which it is or is to be a party on the Closing Date (or a certificate of the Secretary or an Assistant Secretary of Lead Borrower certifying such resolutions delivered on the Effective Date pursuant to Section 5.01(a)(ii) remain in full force and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Noteseffect).
(iiiiv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan Party listing (or, as regards a Canadian Guarantor, a certificate of the Secretary or an Assistant Secretary of each Canadian Guarantor certifying a copy of) the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Party and each amendment thereto on file in the office of such Secretary of State (or such Governmental Authority) (or certifying that there have been no changes to such Person’s certificate or articles of incorporation (or similar constitutive document) since the Effective Date) and (A) certifying that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in such office, (B) as regards U.S. Loan Parties, certifying if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) as regards U.S. Loan Parties, certifying that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. The Canadian Guarantors shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Guarantor (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Guarantor).
(v) A certificate of a Responsible Officer the Secretary or an Assistant Secretary of the Company each Loan Party certifying the names and true signatures of the officers of the Company such Loan Party authorized to sign this Agreement and the Notes each Loan Document to which it is a party and the other documents to be delivered hereunderhereunder (or certifying no change to the certificate delivered on the Effective Date pursuant to Section 5.01(a)(v)).
(vi) A favorable opinion of Xxxxxxxx, Xxxxxx, Xxxxx & Xxxx, XxXxxxxx Xxxxxxxx LLP and attaching Xxxxxx, Xxxxxxxx & Xxxxxxx LLP, special counsel to the Loan Parties, in each case in a form reasonably acceptable to the Agent and addressed to the Agent, the Issuing Banks and each of the Lenders.
(vii) Except to the extent that the Agent reasonably agrees that such conditions may be satisfied within a post-closing period to be set forth on Schedule 7.01(p) (which may be supplemented on the Closing Date with the approval of the Agent, not to be unreasonably withheld, conditioned or delayed), (1) the Perfection Certificate and all agreements, documents, filings, recordations and lien searches reasonably necessary or requested by the Agent in connection with the creation, perfection and priority of the Liens in favor of the Agent, for the benefit of the Secured Parties, securing the Obligations shall have been duly executed, and/or made; (2) all filing and recording fees and taxes shall have been duly paid and (3) the Agent shall be satisfied with the amount, types and terms and conditions of all insurance maintained by Holdings and its Subsidiaries..
(viii) A certificate of a Responsible Officer of Lead Borrower to the effect set forth in Section 5.02(c), 5.02(d), 5.02(g), 5.03(a) and 5.03(b) below.
(ix) A certificate of the chief financial officer of Holdings to the effect that, after giving effect to the Transactions and the incurrence of any Revolving Credit Advances made and Letters of Credit issued on the Closing Date, (x) the charter Holdings and by-laws of the Company certifiedits Subsidiaries, to the extent applicableon a Consolidated basis, as of a recent date by the applicable state Governmental Authority are Solvent and (y) a good standing certificate (to the extent such concept exists) from the applicable state Governmental Authority each of the Company’s jurisdiction of incorporationCanadian Guarantors, on an individual basis, is Solvent.
(ivc) A customary opinion There shall not have occurred since December 31, 2019 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change.
(d) There shall not be any action, suit, investigation or proceeding pending or, to the knowledge of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLPthe Loan Parties, New Yorkthreatened in any court or before any arbitrator or Governmental Authority that is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect.
(e) Lead Borrower shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the CompanyAgent).
(vf) The Refinancing shall have been (or substantially concurrently shall be) consummated.
(g) After giving effect to (i) any Revolving Credit Advance funded on the Closing Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Closing Date, Availability plus the amount of cash and Cash Equivalents of Lead Borrower and its Restricted Subsidiaries shall be not less than $150.0 million.
(h) The Agent shall have received a certificateBorrowing Base Certificate dated the Closing Date, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect relating to the Transactions are solventFiscal Month ended on October 30, 2020, and executed by a Responsible Officer of Lead Borrower.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Samples: Revolving Credit Agreement (Rayonier Advanced Materials Inc.)
Conditions Precedent to the Closing Date. The obligations of the Lenders to make Advances Closing Date hereunder shall be is subject to the following conditions having been satisfied condition precedent that the Company and the Administrative Agent (as the Company’s assignee) shall have received, on or waived (before the first such date on which each of the following conditions have been satisfied or waivedClosing Date, the “following, each (unless otherwise indicated) dated the Closing Date”, and each in form and substance reasonably satisfactory to the Company and the Administrative Agent (as the Company’s assignee):
(a) Since November 30A copy of the resolutions or written consent of the board of directors or managers or other equivalent governing body of each Originator approving the Transaction Documents to be executed and delivered by it and the transactions contemplated thereby, 2023, there has not been any effect, change, event, circumstance, condition, occurrence certified by the Secretary or development that has had Assistant Secretary (or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.equivalent) of such Originator;
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to Good standing certificates, or in connection with this Agreementan equivalent certificate, for each Originator issued as of a recent date reasonably acceptable to the extent invoiced at least three business days prior to Company and the Closing Date Administrative Agent (except as otherwise reasonably agreed the Company’s assignee) by the Company) (which amounts may be offset against the proceeds Secretary of State, or other equivalent authority, of the Facilities).jurisdiction of such Originator’s organization;
(c) On A certificate of the Closing DateSecretary or Assistant Secretary (or equivalent) of each Originator certifying the names and true signatures of the officers authorized on such Person’s behalf to sign the Transaction Documents to be executed and delivered by it (on which certificate the Servicer, the Company and the Administrative Agent shall have received for the account of each Lender a certificate signed by a Responsible Officer of (as the Company’s assignee) may conclusively rely until such time as the Servicer, dated the Closing Date, certifying to Company and the occurrence or satisfaction clauses Administrative Agent (aas the Company’s assignee) and (h) shall receive from such Person a revised certificate meeting the requirements of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.clause (c));
(d) The Agent shall have received certificate or articles of incorporation, certificate of formation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State, or other equivalent authority, of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws, limited liability company agreement, or equivalent governing document of such Originator (including all amendments and modifications thereto), each duly certified by the Secretary or an Assistant Secretary (or equivalent) of such Originator;
(e) The forms of financing statements (Form UCC-1) that name each Originator as the debtor/seller and the Company as the buyer/assignor (and the Administrative Agent, for the benefit of the Secured Parties, as secured party/assignee) of the Receivables sold or contributed by such Originator as may be necessary or, in the Company’s or the Administrative Agent’s reasonable opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Company’s ownership interest in all Receivables and Related Rights (including, without limitation, Related Security) in which an ownership or security interest has been assigned to the Company hereunder;
(f) Written lien search results listing all effective financing statements that name the Originators as debtors or sellers and that are filed in each Originator’s jurisdiction of organization, together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, on or before prior to the Closing Date copies Initial Funding Date), shall cover any Receivable or any Related Rights which are to be sold or contributed to the Company hereunder), and tax and judgment lien search results showing no evidence of such liens filed against any Originator;
(g) Favorable opinions of counsel to the following, each dated the Closing DateOriginators, in form and substance reasonably satisfactory to the Company, the Administrative Agent (as the Company’s assignee), and each Group Agent:;
(h) A Subordinated Note in favor of each Originator, duly executed by the Company; and
(i) The Notes Evidence of (i) the execution and delivery by each Originator and the Company of each of the other Transaction Documents to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date.
be executed and delivered in connection herewith; and (ii) Certified copies that each of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of a Responsible Officer of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, conditions precedent to the extent applicableexecution, as delivery and effectiveness of a recent date by the applicable state Governmental Authority and (y) a good standing certificate (such other Transaction Documents has been satisfied to the extent such concept exists) from the applicable state Governmental Authority of the Company’s jurisdiction of incorporation.
and the Administrative Agent’s (iv) A customary opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, New York, counsel to as the Company’s assignee) satisfaction.
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Conditions Precedent to the Closing Date. The obligations occurrence of the Lenders to make Advances hereunder shall be Closing Date is subject to the following conditions having been satisfied or waived (satisfaction by the first such date on which Borrower of each of the following conditions have been satisfied or waived, (unless waived in writing by the “Closing Date”Administrative Agent (acting at the direction of all Lenders)):
(a) Since November 30The Administrative Agent’s receipt of the following, 2023, there has not been any effect, change, event, circumstance, condition, occurrence each of which shall be originals or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
electronic copies (b) The Company shall have paid on followed promptly following the Closing Date all fees required by originals if so specified), each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to be paid pursuant to or in connection with the Administrative Agent and each of the Lenders:
(i) duly executed counterparts of this Agreement, with originals sufficient in number for distribution to the extent invoiced at least three business days Administrative Agent, each Lender and the Borrower;
(ii) an original Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) a pledge and security agreement (the “Security Agreement”), duly executed by the Borrower and Collateral Agent, together with:
(A) a proper financing statement in form appropriate for filing under the UCC of the State of organization of the Borrower, covering the Collateral described in the Security Agreement,
(B) with respect to the Borrower and the Project Company, certified copies of a recent search, satisfactory to them, in respect of all effective UCC financing statements and fixture filings and all judgment and tax lien filings, in each of the jurisdictions where assets of the Borrower or the Project Company are located, which have been made with respect to any personal or mixed property of the Borrower or the Project Company, together with copies of all such filings disclosed by such search, and such searches shall reveal no Liens on any of the assets of the Borrower or the Project Company except for Permitted Liens or Liens discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Lenders (except including UCC termination statements for filing in all applicable jurisdictions as otherwise reasonably agreed may be necessary to terminate any effective UCC financing statements or fixture or real property filings disclosed in such search); and
(C) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken;
(iv) a depositary agreement (the “Depositary Agreement”), duly executed by the CompanyBorrower, the Collateral Agent and the Depositary Bank;
(v) executed counterparts of the Pledge Agreement, duly executed by Holdings and the Collateral Agent, together with:
(A) original certificates and instruments representing any certificated securities collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) a proper financing statement in form appropriate for filing under the UCC in the District of Columbia, covering the Collateral described in the Pledge Agreement,
(C) a statement of particulars in the required format to register the security interests under the Pledge Agreement at Companies House in England and Wales,
(D) with respect to Holdings, certified copies of a recent search, satisfactory to them, in respect of all effective Companies House filing histories and UCC financing statements and fixture filings and all judgment and tax lien filings, in each of the jurisdictions where assets of Holdings are located, which amounts have been made with respect to any personal or mixed property of Holdings, together with copies of all such filings disclosed by such search, and such searches shall reveal no Liens on any of the assets of the Holdings except for Permitted HoldCo Liens or Liens discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Lenders (including UCC termination statements for filing in all applicable jurisdictions as may be offset against necessary to terminate any effective UCC financing statements or fixture or real property filings disclosed in such search); and
(E) evidence that all other actions, recordings and filings that the proceeds Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge Agreement has been taken (other than the filing of the Facilitiesstatement of particulars described in clause (C) above, which shall be filed within ten (10) days after the Closing Date).;
(cvi) On a certificate from each of the Loan Parties, signed by a Responsible Officer of each such Person and dated the Closing Date, attaching and certifying the Agent shall have received for following:
(A) such Loan Party’s (and in the account case of the Borrower, the Project Company’s) Organizational Documents (including a copy of the certificate of formation or other formation documents, including all amendments thereto, certified as of a recent date by the applicable Secretary of State or other applicable Governmental Authority), and certifying that such documents are in full force and effect as of the Closing Date, no term or condition thereof has been amended from the form attached to such certificate;
(B) a copy of one or more board or other resolutions or other authorizations from such Loan Party certified by a Responsible Officer of such Loan Party as being in full force and effect on the Closing Date, authorizing the execution, delivery and performance of this Agreement (in the case of the Borrower’s certificate) and of each Lender Transaction Document to which it is a party and the consummation of the transactions contemplated therein and any instruments or agreements required hereunder or thereunder;
(C) a certificate of incumbency including the names and true signatures of the incumbent officers of such Loan Party authorized to sign the Transaction Documents to which such Loan Party is a party;
(D) a certificate, certified as a recent date by the Delaware Secretary of State, certifying that the Borrower is validly existing and in good standing in its jurisdiction of formation;
(E) a certificate, certified as a recent date by the Texas Secretary of State, certifying that the Project Company is validly existing and in good standing in its jurisdiction of formation; and
(F) a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to this clause (vii);
(vii) the favorable opinions of Xxxxx Xxxxx LLP, New York, Delaware and English counsel to the Loan Parties addressed to and in form and substance satisfactory to the Administrative Agent and each Lender;
(viii) a certificate signed by a Responsible Officer of the CompanyBorrower certifying that (x) the conditions in Section 4.01 are satisfied, dated or to the extent that documents are to be delivered to the Administrative Agent, that such documents have been delivered (without certifying that such documents are in form and substance satisfactory to the Administrative Agent), (y) the representations and warranties made by it pursuant to Article V are true and correct and (z) the Borrower has not received written notice of, and has no Knowledge of, any Event of Loss in respect of the Project;
(ix) a certificate signed by a Responsible Officer of Holdings certifying that the representations and warranties made by it pursuant to the Pledge Agreement are true and correct;
(x) a certificate of the Borrower attesting to the Solvency of the Borrower before and after giving effect to the Transactions contemplated to occur on the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, in form and substance reasonably satisfactory to the Agent:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of from a Responsible Financial Officer of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state Governmental Authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state Governmental Authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, New York, counsel to the Company.
(v) The Agent shall have received a certificateBorrower, substantially in the form of Exhibit E heretoH; and
(xi) duly executed counterparts of the Intercreditor Agreement, from with originals sufficient in number for distribution to the chief financial officer Administrative Agent, Collateral Agent and the Borrower;
(b) The Administrative Agent’s receipt of the following, each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) the Construction Budget and Schedule (certified by a Responsible Officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect as, to the Transactions are solventKnowledge of the Borrower, based on reasonable assumptions as to the legal and factual matters material to the estimates set forth therein, and fairly representing the Borrower’s expectations as to the financial performance of the Project over the term of the Loans);
(ii) the Technical and Environmental Due Diligence Report favorably reviewing (A) the technical and economic feasibility of the Project and the environmental compliance and environmental risks relating to the Project; (B) the reasonableness of the Construction Budget and Schedule, each of the EPC Contracts and the assumptions related to the costs and operating performance of the Project; and (C) the reasonableness of the technical assumptions underlying the Financial Model;
(iii) the unaudited financial statements of the Project Company, consisting of the balance sheet of the Project Company and the related statements of income and cash flows as of February 28, 2019;
(iv) the Financial Model (satisfying the Target Debt Balance and Debt Service Coverage Ratio); and
(v) copies of each of the Market Consultant Report and the Insurance Consultant’s Report, in each case, together, if necessary, with reliance letters in respect of the same authorizing the Administrative Agent’s, the Arrangers’ and the Lenders’ reliance on such reports, dated the Closing Date.
(vic) With respect to the Material Project Documents, the Administrative Agent shall have received:
(xi) at least three days prior to true, complete and correct copies of each Material Project Document as of the Closing Date all documentation and other information regarding any existing supplements or amendments thereto, and such documents shall have been duly authorized, executed and delivered by the Project Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Actand, to the extent reasonably requested in writing Knowledge of the Company at least ten Business Days prior to Borrower, the other parties thereto and shall be in full force and effect on the Closing Date andand shall be certified by a Responsible Officer of the Borrower as, to its Knowledge, being true, complete and correct copies and in full force and effect;
(ii) a certificate from a Responsible Officer of the Borrower, satisfactory in form and substance to the Administrative Agent and the Lenders, certifying that (A) all conditions precedent to the performance of the Project Company under each Material Project Document have been satisfied or waived (other than conditions precedent that are not required to be satisfied until a later date); (B) all performance security required to be delivered under each Material Project Document as of the Closing Date has been so delivered and (C) no party to any such Material Project Document is, or but for the passage of time or giving of notice or both will be, in breach of any obligation thereunder;
(iii) a certificate from the Lenders’ Technical and Environmental Consultant confirming that (A) the Technical and Environmental Due Diligence Report and all informational materials contained therein are, as of the date of such Technical and Environmental Due Diligence Report, and are, as of the Closing Date true, correct and complete in all material respects based upon the information furnished to the Lenders’ Technical and Environmental Consultant as of the Closing Date, (B) since the date of the Technical and Environmental Due Diligence Report, there has been no material change to the Technical and Environmental Due Diligence Report or to the conditions set forth therein other than as disclosed to the Lenders in such certificate and (C) to the best of the Lenders’ Technical and Environmental Consultant’s knowledge, no act, event or condition has occurred that would make any information or statement contained in the Technical and Environmental Due Diligence Report untrue, incorrect or misleading in any material respect.
Appears in 1 contract
Conditions Precedent to the Closing Date. The obligations obligation of the Lenders each Lender to make Advances hereunder an Advance (including a Swing Line Advance), and the obligation of each Issuing Bank to Issue each Letter of Credit, in each case, on the Closing Date shall be subject to satisfaction of each of the conditions set forth in Section 5.03 below and the following conditions having been satisfied precedent in each case on or waived (the first such date on which each of the following conditions have been satisfied or waivedprior to December 31, the “Closing Date”):2020:
(a) Since November 30, 2023, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse EffectThe Effective Date shall have occurred.
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a Responsible Officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, following in form and substance reasonably satisfactory to the Agent:
(i) The Notes notes to the order of the Lenders to the extent requested by any Lender no later than three Business Days prior to the Closing Date pursuant to Section 2.16 4.04(d).
(ii) Duly executed copies of (A) the U.S. Security Agreement, to be dated the Closing Date, and all exhibits and schedules thereto, (B) the Canadian Security Agreements, to be dated the Closing Date (provided that the deed of movable hypothec may be dated prior to the Closing Date), and all exhibits and schedules thereto, and (C) the Intellectual Property Security Agreements, to be dated the Closing Date in form and substance reasonably satisfactory to Agent, and all exhibits and schedules thereto.
(iiiii) Certified copies of the resolutions of the Board of Directors (or persons performing similar functions) of each Loan Party approving transactions of the Company approving this Agreement type by each of the Loan Documents to which it is or is to be a party on the Closing Date (or a certificate of the Secretary or an Assistant Secretary of Lead Borrower certifying such resolutions delivered on the Effective Date pursuant to Section 5.01(a)(ii) remain in full force and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Noteseffect).
(iiiiv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan Party listing (or, as regards a Canadian Guarantor, a certificate of the Secretary or an Assistant Secretary of each Canadian Guarantor certifying a copy of) the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Party and each amendment thereto on file in the office of such Secretary of State (or such Governmental Authority) (or certifying that there have been no changes to such Person’s certificate or articles of incorporation (or similar constitutive document) since the Effective Date) and (A) certifying that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in such office, (B) as regards U.S. Loan Parties, certifying if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) as regards U.S. Loan Parties, certifying that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. The Canadian Guarantors shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Guarantor (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Guarantor).
(v) A certificate of a Responsible Officer the Secretary or an Assistant Secretary of the Company each Loan Party certifying the names and true signatures of the officers of the Company such Loan Party authorized to sign this Agreement and the Notes each Loan Document to which it is a party and the other documents to be delivered hereunderhereunder (or certifying no change to the certificate delivered on the Effective Date pursuant to Section 5.01(a)(v)).
(vi) A favorable opinion of Wachtell, Lipton, Xxxxx & Xxxx, XxXxxxxx Xxxxxxxx LLP and attaching Potter, Xxxxxxxx & Xxxxxxx LLP, special counsel to the Loan Parties, in each case in a form reasonably acceptable to the Agent and addressed to the Agent, the Issuing Banks and each of the Lenders.
(vii) Except to the extent that the Agent reasonably agrees that such conditions may be satisfied within a post-closing period to be set forth on Schedule 7.01(p) (which may be supplemented on the Closing Date with the approval of the Agent, not to be unreasonably withheld, conditioned or delayed), (1) the Perfection Certificate and all agreements, documents, filings, recordations and lien searches reasonably necessary or requested by the Agent in connection with the creation, perfection and priority of the Liens in favor of the Agent, for the benefit of the Secured Parties, securing the Obligations shall have been duly executed, and/or made; (2) all filing and recording fees and taxes shall have been duly paid and (3) the Agent shall be satisfied with the amount, types and terms and conditions of all insurance maintained by Holdings and its Subsidiaries..
(viii) A certificate of a Responsible Officer of Lead Borrower to the effect set forth in Section 5.02(c), 5.02(d), 5.02(g), 5.03(a) and 5.03(b) below.
(ix) A certificate of the chief financial officer of Holdings to the effect that, after giving effect to the Transactions and the incurrence of any Revolving Credit Advances made and Letters of Credit issued on the Closing Date, (x) the charter Holdings and by-laws of the Company certifiedits Subsidiaries, to the extent applicableon a Consolidated basis, as of a recent date by the applicable state Governmental Authority are Solvent and (y) a good standing certificate (to the extent such concept exists) from the applicable state Governmental Authority each of the Company’s jurisdiction of incorporationCanadian Guarantors, on an individual basis, is Solvent.
(ivc) A customary opinion There shall not have occurred since December 31, 2019 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change.
(d) There shall not be any action, suit, investigation or proceeding pending or, to the knowledge of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLPthe Loan Parties, New Yorkthreatened in any court or before any arbitrator or Governmental Authority that is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect.
(e) Lead Borrower shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the CompanyAgent).
(vf) The Refinancing shall have been (or substantially concurrently shall be) consummated.
(g) After giving effect to (i) any Revolving Credit Advance funded on the Closing Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Closing Date, Availability plus the amount of cash and Cash Equivalents of Lead Borrower and its Restricted Subsidiaries shall be not less than $150.0 million.
(h) The Agent shall have received a certificateBorrowing Base Certificate dated the Closing Date, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect relating to the Transactions are solventFiscal Month ended on October 30, 2020, and executed by a Responsible Officer of Lead Borrower.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Samples: Revolving Credit Agreement (Rayonier Advanced Materials Inc.)
