Conditions Precedent to the Effectiveness of this Agreement. The obligation of the Administrative Agent and each Lender Party to execute and deliver this Agreement and the effectiveness of this Agreement is subject to the satisfaction of the following conditions precedent before or concurrently with the Closing Date: (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 Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party: (i) A Note duly executed by the Borrower and payable to the order of each Lender. (ii) Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party and, in the case of UCC searches, listing all effective financing statements filed in the jurisdictions that the Administrative Agent may deem necessary or desirable that name any Loan Party as debtor, together with copies of such financing statements. (iii) This Agreement, duly executed by the Loan Parties and the other parties thereto. (iv) Certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party. (v) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of incorporation, organization or formation of each Loan Party and of each general partner, manager or managing member (if any) of each Loan Party, dated reasonably near the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner, manager or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office, (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner, manager or managing member, as the case may be, on file in such Secretary’s office, (2) such Loan Party, general partner, manager or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan Party, general partner, manager or managing member, as the case may be, is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation. (vi) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner, manager or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party, general partner, manager or managing member, that such Loan Party, general partner, manager or managing member, as the case may be, is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate. (vii) A certificate of each Loan Party and of each general partner, manager or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner, manager or managing member, as applicable, by its President or a Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the constitutive documents of such Loan Party, general partner, manager or managing member, as applicable, since the date of the certificate referred to in Section 3.01(a)(vi), (B) a true and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner, manager or managing member, as applicable, as in effect on the date on which the resolutions referred to in Section 3.01(a)(v) were adopted and on the Closing Date, (C) the due incorporation, organization or formation and good standing or valid existence of such Loan Party, general partner, manager or managing member, as applicable, as a corporation, limited liability company or partnership organized under the laws of the jurisdiction of its incorporation, organization or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner, manager or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents and (E) the absence of any event occurring and continuing, or resulting from the closing hereunder or the Advance made on the Closing Date, that constitutes a Default. (viii) A certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner, manager or managing member of any Loan Party) and of each general partner, manager or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the general partner, manager or managing member of such Loan Party, authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder. (ix) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, historical operating statements (if any), audited annual financial statements for the year ending December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lender Parties’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the Closing Date) and financial projections for the Parent Guarantor’s consolidated operations. (x) Evidence of insurance (which may consist of binders or certificates of insurance) naming the Administrative Agent as loss payee and/or additional insured, as applicable, with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, the insurance required by the terms of this Agreement. (xi) An opinion of Xxxxxxxxx Xxxxxxx LLP, New York counsel for the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xii) An opinion of Xxxxxxx Xxxxx Boult Xxxxxxxx LLP, Delaware counsel for the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-2 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xiii) An opinion of Xxxx Xxxxx LLP, Maryland counsel for the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-3 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request. (xiv) An opinion of Sidley Austin LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent. (xv) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit. (xvi) A certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, stating that after giving effect to the Initial Extension of Credit and the Formation Transactions, the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04 on a pro forma basis as of the most recent fiscal quarter end, together with supporting information in form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants. (b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and its Subsidiaries, including the terms and conditions of the charter and bylaws, operating agreement, partnership agreement or other governing document of each of them. (c) The Loan Parties shall have no Debt, other than Existing Debt and other Debt permitted under this Agreement. (d) Before and after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred no material adverse change in the business, condition (financial or otherwise), results of operations or prospects of the Loan Parties or any of the Borrowing Base Assets on the Closing Date since December 31, 2010. (e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to result in a Material Adverse Effect other than the matters described on Schedule 4.01(e) hereto (the “Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby, and there shall have been no adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Material Litigation from that described on Schedule 4.01(e) hereto. (f) All governmental and third party consents and approvals necessary in connection with the transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents. (g) The Borrower shall have entered into the Hedge Agreements required under Section 5.01(o) to the extent any are required by such Section, and shall have provided satisfactory evidence of the same to the Administrative Agent. (h) The organizational documents for each Subsidiary Guarantor shall comply with the Subsidiary Guarantor Requirements. (i) The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties required under this Agreement and all reasonable, out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent).
Appears in 2 contracts
Samples: Credit Agreement (Campus Crest Communities, Inc.), Credit Agreement (Campus Crest Communities, Inc.)
Conditions Precedent to the Effectiveness of this Agreement. The obligation This Agreement shall become effective as of the Administrative Business Day (the “Effective Date”) when Agent and each Lender Party to execute and deliver this Agreement and the effectiveness of this Agreement is subject to the satisfaction has received (or waived receipt of) all of the following conditions precedent before or concurrently with the Closing Date:
(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 Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender PartyAgent:
(ia) A Note duly executed by the Borrower and payable to the order of each Lender.
(ii) Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party and, in the case of UCC searches, listing all effective financing statements filed in the jurisdictions that the Administrative Agent may deem necessary or desirable that name any Loan Party as debtor, together with copies of such financing statements.
(iii) This Agreement, duly executed by the Loan Parties and the other parties thereto.
(iv) Certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(v) A copy of a certificate of a Responsible Officer of Borrower certifying that (i) the Secretary of State (representations and warranties in this Agreement and in each other Loan Document, or equivalent authority) of the jurisdiction of incorporation, organization in any certificate executed and delivered to Agent pursuant hereto or formation of each Loan Party and of each general partner, manager or managing member (if any) of each Loan Party, dated reasonably near the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a thereto are true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner, manager or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office, (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner, manager or managing member, as the case may be, on file in such Secretary’s office, (2) such Loan Party, general partner, manager or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan Party, general partner, manager or managing member, as the case may be, is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(vi) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner, manager or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party, general partner, manager or managing member, that such Loan Party, general partner, manager or managing member, as the case may be, is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate.
(vii) A certificate of each Loan Party and of each general partner, manager or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner, manager or managing member, as applicable, by its President or a Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the Closing Date (the statements made in which certificate shall be true material respects on and as of the Closing Effective Date (except that such materiality qualifier shall not apply to representations and warranties that already are qualified or modified by materiality thereof, which representations and warranties shall be true and correct on and as of the Effective Date); provided, certifying that those representations and warranties expressly referring to a specific date shall be true and correct in all material respects on and as of such date (except that such materiality qualifier shall not apply to representations and warranties that already are qualified or modified by materiality thereof, which representations and warranties shall be true and correct on and as of such date), (Aii) no Default or Event of Default shall have occurred and be continuing on the absence Effective Date or would result from this Agreement or the other Loan Documents becoming effective in accordance with its or their respective terms or the consummation of the transactions hereunder and (iii) since December 31, 2019, there has not been any amendments Material Adverse Change;
(b) this Agreement and all other Loan Documents duly executed and delivered by each Loan Party which is party to them as of the Effective Date (collectively, the “Effective Date Loan Parties”);
(c) a certificate signed by the chief executive officer or chief financial officer of each Effective Date Loan Party with respect to the constitutive documents Loan Documents and the transactions contemplated hereby and thereby on the Effective Date attaching (i) resolutions and incumbency certifications of such Loan PartyParty with respect to the Loan Documents and the transactions contemplated hereby and thereby on the Effective Date, general partner, manager or managing member, as applicable, since the date (ii) a copy of the certificate referred to in Section 3.01(a)(vi)by-laws, operating agreement and/or partnership agreement, together with all amendments thereto, (Biii) a true and correct copy of the bylawscertificate of incorporation, operating agreementcertificate of formation and/or certificate of partnership of such Loan Party certified as of a recent date not more than 30 days prior to the Effective Date by an appropriate official of the state of organization of such Loan Party which shall set forth the same complete name of such Loan Party as is set forth herein and the organizational number of the Loan Party, partnership agreement or other governing document if an organized number is issued in such jurisdiction, (iv) a certificate of status with respect to such Loan Party, general partner, manager or managing member, as applicable, as in effect on dated within 30 days of the date on which the resolutions referred to in Section 3.01(a)(v) were adopted and on the Closing Effective Date, (C) such certificate to be issued by the due incorporation, organization or formation and good standing or valid existence of such Loan Party, general partner, manager or managing member, as applicable, as a corporation, limited liability company or partnership organized under the laws appropriate officer of the jurisdiction of its incorporation, organization or formation and the absence of any proceeding for the dissolution or liquidation of such Loan PartyParty which certificate shall indicate that such Loan Party is in good standing in such jurisdiction, general partner, manager or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents and (Ev) the absence of any event occurring and continuing, or resulting from the closing hereunder or the Advance made on the Closing Date, that constitutes a Default.
(viii) A certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner, manager or managing member of any Loan Party) and of each general partner, manager or managing member (if any) of each Loan Party certifying the names and true signatures of the officers representatives of such Loan Party, or of the general partner, manager or managing member of such Loan Party, Party authorized to sign each Loan Document to which it such Loan Party is or is to will be a party and the other documents to be executed and delivered hereunder by such Loan Party in connection herewith and thereunder.therewith, together with evidence of the incumbency of such authorized officers;
(ixd) Such financial, business and other information regarding receipt of financing statements in form appropriate for filing against each Effective Date Loan Party and its Subsidiaries on Form UCC-1 in such office or offices as may be necessary to perfect the Lender Parties shall have requested, including, without limitation, information as security interests purported to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, historical operating statements be created by this Agreement;
(if any), audited annual financial statements for the year ending December 31, 2010, interim financial statements dated the end e) customary opinions of the most recent fiscal quarter for which financial statements are available (or, in the event the Lender Parties’ due diligence review reveals material changes since such financial statementsa) Dxxxx Xxxx & Wxxxxxxx LLP, as of a later date within 45 days of special New York counsel to the Closing DateEffective Date Loan Parties and (b) and financial projections for Rxxxxxxx, Xxxxxx & Fxxxxx, PA, as special Delaware counsel to the Parent Guarantor’s consolidated operations.Effective Date Loan Parties;
(xf) Evidence of insurance (which may consist of binders or certificates of insurance) naming copies, dated not more than 30 days before the Administrative Agent as loss payee and/or additional insured, as applicable, with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, the insurance required by the terms date of this Agreement.
(xi) An opinion , of Xxxxxxxxx Xxxxxxx LLPfinancing statement searches, New York counsel for the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.;
(xiig) An opinion of Xxxxxxx Xxxxx Boult Xxxxxxxx LLPa Perfection Certificate, Delaware counsel for duly executed and delivered by all Person who will be Loan Parties on the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-2 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.Funding Date;
(xiiih) An opinion of Xxxx Xxxxx LLP, Maryland counsel for the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-3 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.[reserved]; and
(xiv) An opinion of Sidley Austin LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent.
(xv) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit.
(xvi) A certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, stating that after giving effect to the Initial Extension of Credit and the Formation Transactions, the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04 on a pro forma basis as of the most recent fiscal quarter end, together with supporting information in form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants.
(b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and its Subsidiaries, including the terms and conditions of the charter and bylaws, operating agreement, partnership agreement or other governing document of each of them.
(c) The Loan Parties shall have no Debt, other than Existing Debt and other Debt permitted under this Agreement.
(d) Before and after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred no material adverse change in the business, condition (financial or otherwise), results of operations or prospects of the Loan Parties or any of the Borrowing Base Assets on the Closing Date since December 31, 2010.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to result evidence that all consents, authorizations and approvals of, and filings and registrations with, and all other actions in a Material Adverse Effect respect of, any Governmental Authority or other than the matters described on Schedule 4.01(e) hereto (the “Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or Person required in connection with the consummation of the transactions contemplated thereby, and there shall have been no adverse change in hereunder or the status, or financial effect on conduct of any Effective Date Loan Party or any of its Subsidiaries, of the Material Litigation from that described on Schedule 4.01(e) hereto.
(f) All governmental and third party consents and approvals necessary in connection with the transactions contemplated Party’s business as required by the Loan Documents shall this Agreement have been obtained (without and are in full force and effect. By executing this Agreement the imposition Agent and each Lender shall been deemed to be satisfied with, or to have waived, any and all of any conditions that are not acceptable to the Lender Parties) and shall remain in effectabove-listed conditions, and no law or regulation this Agreement shall be applicable in the reasonable judgment effective as of the Lender Parties that restrainsdate of such execution, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documentsnotwithstanding any other provision herein.
(g) The Borrower shall have entered into the Hedge Agreements required under Section 5.01(o) to the extent any are required by such Section, and shall have provided satisfactory evidence of the same to the Administrative Agent.
(h) The organizational documents for each Subsidiary Guarantor shall comply with the Subsidiary Guarantor Requirements.
(i) The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties required under this Agreement and all reasonable, out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent).
Appears in 2 contracts
Samples: Loan and Security Agreement (Doma Holdings, Inc.), Loan and Security Agreement (Doma Holdings, Inc.)
Conditions Precedent to the Effectiveness of this Agreement. The obligation This Agreement shall become effective as of the Administrative Business Day (the “Effective Date”) when Agent and each Lender Party to execute and deliver this Agreement and the effectiveness of this Agreement is subject to the satisfaction has received (or waived receipt of) all of the following conditions precedent before or concurrently with the Closing Date:
(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 Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender PartyAgent:
(ia) A Note duly executed by the Borrower and payable to the order of each Lender.
(ii) Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party and, in the case of UCC searches, listing all effective financing statements filed in the jurisdictions that the Administrative Agent may deem necessary or desirable that name any Loan Party as debtor, together with copies of such financing statements.
(iii) This Agreement, duly executed by the Loan Parties and the other parties thereto.
(iv) Certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(v) A copy of a certificate of a Responsible Officer of Borrower certifying that (i) the Secretary of State (representations and warranties in this Agreement and in each other Loan Document, or equivalent authority) of the jurisdiction of incorporation, organization in any certificate executed and delivered to Agent pursuant hereto or formation of each Loan Party and of each general partner, manager or managing member (if any) of each Loan Party, dated reasonably near the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a thereto are true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner, manager or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office, (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner, manager or managing member, as the case may be, on file in such Secretary’s office, (2) such Loan Party, general partner, manager or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan Party, general partner, manager or managing member, as the case may be, is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(vi) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner, manager or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party, general partner, manager or managing member, that such Loan Party, general partner, manager or managing member, as the case may be, is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate.
(vii) A certificate of each Loan Party and of each general partner, manager or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner, manager or managing member, as applicable, by its President or a Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the Closing Date (the statements made in which certificate shall be true material respects on and as of the Closing Effective Date (except that such materiality qualifier shall not apply to representations and warranties that already are qualified or modified by materiality thereof, which representations and warranties shall be true and correct on and as of the Effective Date); provided, certifying that those representations and warranties expressly referring to a specific date shall be true and correct in all material respects on and as of such date (except that such materiality qualifier shall not apply to representations and warranties that already are qualified or modified by materiality thereof, which representations and warranties shall be true and correct on and as of such date), (Aii) no Default or Event of Default shall have occurred and be continuing on the absence Effective Date or would result from this Agreement or the other Loan Documents becoming effective in accordance with its or their respective terms or the consummation of the transactions hereunder and (iii) since December 31, 2019, there has not been any amendments Material Adverse Change;
(b) this Agreement and all other Loan Documents duly executed and delivered by each Loan Party which is party to them as of the Effective Date (collectively, the “Effective Date Loan Parties”);
(c) a certificate signed by the chief executive officer or chief financial officer of each Effective Date Loan Party with respect to the constitutive documents Loan Documents and the transactions contemplated hereby and thereby on the Effective Date attaching (i) resolutions and incumbency certifications of such Loan PartyParty with respect to the Loan Documents and the transactions contemplated hereby and thereby on the Effective Date, general partner, manager or managing member, as applicable, since the date (ii) a copy of the certificate referred to in Section 3.01(a)(vi)by-laws, operating agreement and/or partnership agreement, together with all amendments thereto, (Biii) a true and correct copy of the bylawscertificate of incorporation, operating agreementcertificate of formation and/or certificate of partnership of such Loan Party certified as of a recent date not more than 30 days prior to the Effective Date by an appropriate official of the state of organization of such Loan Party which shall set forth the same complete name of such Loan Party as is set forth herein and the organizational number of the Loan Party, partnership agreement or other governing document if an organized number is issued in such jurisdiction, (iv) a certificate of status with respect to such Loan Party, general partner, manager or managing member, as applicable, as in effect on dated within 30 days of the date on which the resolutions referred to in Section 3.01(a)(v) were adopted and on the Closing Effective Date, (C) such certificate to be issued by the due incorporation, organization or formation and good standing or valid existence of such Loan Party, general partner, manager or managing member, as applicable, as a corporation, limited liability company or partnership organized under the laws appropriate officer of the jurisdiction of its incorporation, organization or formation and the absence of any proceeding for the dissolution or liquidation of such Loan PartyParty which certificate shall indicate that such Loan Party is in good standing in such jurisdiction, general partner, manager or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents and (Ev) the absence of any event occurring and continuing, or resulting from the closing hereunder or the Advance made on the Closing Date, that constitutes a Default.
(viii) A certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner, manager or managing member of any Loan Party) and of each general partner, manager or managing member (if any) of each Loan Party certifying the names and true signatures of the officers representatives of such Loan Party, or of the general partner, manager or managing member of such Loan Party, Party authorized to sign each Loan Document to which it such Loan Party is or is to will be a party and the other documents to be executed and delivered hereunder by such Loan Party in connection herewith and thereunder.therewith, together with evidence of the incumbency of such authorized officers;
(ixd) Such financial, business and other information regarding receipt of financing statements in form appropriate for filing against each Effective Date Loan Party and its Subsidiaries on Form UCC-1 in such office or offices as may be necessary to perfect the Lender Parties shall have requested, including, without limitation, information as security interests purported to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, historical operating statements be created by this Agreement;
(if any), audited annual financial statements for the year ending December 31, 2010, interim financial statements dated the end e) customary opinions of the most recent fiscal quarter for which financial statements are available (or, in the event the Lender Parties’ due diligence review reveals material changes since such financial statementsa) Xxxxx Xxxx & Xxxxxxxx LLP, as of a later date within 45 days of special New York counsel to the Closing DateEffective Date Loan Parties and (b) and financial projections for Xxxxxxxx, Xxxxxx & Xxxxxx, PA, as special Delaware counsel to the Parent Guarantor’s consolidated operations.Effective Date Loan Parties;
(xf) Evidence of insurance (which may consist of binders or certificates of insurance) naming copies, dated not more than 30 days before the Administrative Agent as loss payee and/or additional insured, as applicable, with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, the insurance required by the terms date of this Agreement.
(xi) An opinion , of Xxxxxxxxx Xxxxxxx LLPfinancing statement searches, New York counsel for the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.;
(xiig) An opinion of Xxxxxxx Xxxxx Boult Xxxxxxxx LLPa Perfection Certificate, Delaware counsel for duly executed and delivered by all Person who will be Loan Parties on the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-2 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.Funding Date;
(xiiih) An opinion of Xxxx Xxxxx LLP, Maryland counsel for the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-3 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.[reserved]; and
(xiv) An opinion of Sidley Austin LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent.
(xv) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit.
(xvi) A certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, stating that after giving effect to the Initial Extension of Credit and the Formation Transactions, the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04 on a pro forma basis as of the most recent fiscal quarter end, together with supporting information in form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants.
(b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and its Subsidiaries, including the terms and conditions of the charter and bylaws, operating agreement, partnership agreement or other governing document of each of them.
(c) The Loan Parties shall have no Debt, other than Existing Debt and other Debt permitted under this Agreement.
(d) Before and after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred no material adverse change in the business, condition (financial or otherwise), results of operations or prospects of the Loan Parties or any of the Borrowing Base Assets on the Closing Date since December 31, 2010.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to result evidence that all consents, authorizations and approvals of, and filings and registrations with, and all other actions in a Material Adverse Effect respect of, any Governmental Authority or other than the matters described on Schedule 4.01(e) hereto (the “Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or Person required in connection with the consummation of the transactions contemplated thereby, and there shall have been no adverse change in hereunder or the status, or financial effect on conduct of any Effective Date Loan Party or any of its Subsidiaries, of the Material Litigation from that described on Schedule 4.01(e) hereto.
(f) All governmental and third party consents and approvals necessary in connection with the transactions contemplated Party’s business as required by the Loan Documents shall this Agreement have been obtained (without and are in full force and effect. By executing this Agreement the imposition Agent and each Lender shall been deemed to be satisfied with, or to have waived, any and all of any conditions that are not acceptable to the Lender Parties) and shall remain in effectabove-listed conditions, and no law or regulation this Agreement shall be applicable in the reasonable judgment effective as of the Lender Parties that restrainsdate of such execution, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documentsnotwithstanding any other provision herein.
(g) The Borrower shall have entered into the Hedge Agreements required under Section 5.01(o) to the extent any are required by such Section, and shall have provided satisfactory evidence of the same to the Administrative Agent.
(h) The organizational documents for each Subsidiary Guarantor shall comply with the Subsidiary Guarantor Requirements.
(i) The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties required under this Agreement and all reasonable, out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent).
Appears in 2 contracts
Samples: Loan and Security Agreement (Doma Holdings, Inc.), Loan and Security Agreement (Doma Holdings, Inc.)
Conditions Precedent to the Effectiveness of this Agreement. The obligation This Agreement shall become effective as of the Administrative Business Day (the “Effective Date”) when Agent and each Lender Party to execute and deliver this Agreement and the effectiveness of this Agreement is subject to the satisfaction has received (or waived receipt of) all of the following conditions precedent before or concurrently with the Closing Date:
(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 Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender PartyAgent:
(ia) A Note duly executed by the Borrower and payable to the order of each Lender.
(ii) Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party and, in the case of UCC searches, listing all effective financing statements filed in the jurisdictions that the Administrative Agent may deem necessary or desirable that name any Loan Party as debtor, together with copies of such financing statements.
(iii) This Agreement, duly executed by the Loan Parties and the other parties thereto.
(iv) Certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(v) A copy of a certificate of a Responsible Officer of Borrower certifying that (i) the Secretary of State (representations and warranties in this Agreement and in each other Loan Document, or equivalent authority) of the jurisdiction of incorporation, organization in any certificate executed and delivered to Agent pursuant hereto or formation of each Loan Party and of each general partner, manager or managing member (if any) of each Loan Party, dated reasonably near the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a thereto are true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner, manager or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office, (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner, manager or managing member, as the case may be, on file in such Secretary’s office, (2) such Loan Party, general partner, manager or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan Party, general partner, manager or managing member, as the case may be, is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(vi) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner, manager or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party, general partner, manager or managing member, that such Loan Party, general partner, manager or managing member, as the case may be, is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate.
(vii) A certificate of each Loan Party and of each general partner, manager or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner, manager or managing member, as applicable, by its President or a Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the Closing Date (the statements made in which certificate shall be true material respects on and as of the Closing Effective Date (except that such materiality qualifier shall not apply to representations and warranties that already are qualified or modified by materiality thereof, which representations and warranties shall be true and correct on and as of the Effective Date); provided, certifying that those representations and warranties expressly referring to a specific date shall be true and correct in all material respects on and as of such date (except that such materiality qualifier shall not apply to representations and warranties that already are qualified or modified by materiality thereof, which representations and warranties shall be true and correct on and as of such date), (Aii) no Default or Event of Default shall have occurred and be continuing on the absence Effective Date or would result from this Agreement or the other Loan Documents becoming effective in accordance with its or their respective terms or the consummation of the transactions hereunder and (iii) since December 31, 2019, there has not been any amendments Material Adverse Change;
(b) this Agreement and all other Loan Documents duly executed and delivered by each Loan Party which is party to them as of the Effective Date (collectively, the “Effective Date Loan Parties”);
(c) a certificate signed by the chief executive officer or chief financial officer of each Effective Date Loan Party with respect to the constitutive documents Loan Documents and the transactions contemplated hereby and thereby on the Effective Date attaching (i) resolutions and incumbency certifications of such Loan PartyParty with respect to the Loan Documents and the transactions contemplated hereby and thereby on the Effective Date, general partner, manager or managing member, as applicable, since the date (ii) a copy of the certificate referred to in Section 3.01(a)(vi)by-laws, operating agreement and/or partnership agreement, together with all amendments thereto, (Biii) a true and correct copy of the bylawscertificate of incorporation, operating agreementcertificate of formation and/or certificate of partnership of such Loan Party certified as of a recent date not more than 30 days prior to the Effective Date by an appropriate official of the state of organization of such Loan Party which shall set forth the same complete name of such Loan Party as is set forth herein and the organizational number of the Loan Party, partnership agreement or other governing document if an organized number is issued in such jurisdiction, (iv) a certificate of status with respect to such Loan Party, general partner, manager or managing member, as applicable, as in effect on dated within 30 days of the date on which the resolutions referred to in Section 3.01(a)(v) were adopted and on the Closing Effective Date, (C) such certificate to be issued by the due incorporation, organization or formation and good standing or valid existence of such Loan Party, general partner, manager or managing member, as applicable, as a corporation, limited liability company or partnership organized under the laws appropriate officer of the jurisdiction of its incorporation, organization or formation and the absence of any proceeding for the dissolution or liquidation of such Loan PartyParty which certificate shall indicate that such Loan Party is in good standing in such jurisdiction, general partner, manager or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents and (Ev) the absence of any event occurring and continuing, or resulting from the closing hereunder or the Advance made on the Closing Date, that constitutes a Default.
(viii) A certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner, manager or managing member of any Loan Party) and of each general partner, manager or managing member (if any) of each Loan Party certifying the names and true signatures of the officers representatives of such Loan Party, or of the general partner, manager or managing member of such Loan Party, Party authorized to sign each Loan Document to which it such Loan Party is or is to will be a party and the other documents to be executed and delivered hereunder by such Loan Party in connection herewith and thereunder.therewith, together with evidence of the incumbency of such authorized officers;
(ixd) Such financial, business and other information regarding receipt of financing statements in form appropriate for filing against each Effective Date Loan Party and its Subsidiaries on Form UCC-1 in such office or offices as may be necessary to perfect the Lender Parties shall have requested, including, without limitation, information as security interests purported to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, historical operating statements be created by this Agreement;
(if any), audited annual financial statements for the year ending December 31, 2010, interim financial statements dated the end e) customary opinions of the most recent fiscal quarter for which financial statements are available (or, in the event the Lender Parties’ due diligence review reveals material changes since such financial statementsa) Xxxxx Xxxx & Xxxxxxxx LLP, as of a later date within 45 days of special New York counsel to the Closing DateEffective Date Loan Parties and (b) and financial projections for Xxxxxxxx, Xxxxxx & Finger, PA, as special Delaware counsel to the Parent Guarantor’s consolidated operations.Effective Date Loan Parties;
(xf) Evidence of insurance (which may consist of binders or certificates of insurance) naming copies, dated not more than 30 days before the Administrative Agent as loss payee and/or additional insured, as applicable, with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, the insurance required by the terms date of this Agreement.
(xi) An opinion , of Xxxxxxxxx Xxxxxxx LLPfinancing statement searches, New York counsel for the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.;
(xiig) An opinion of Xxxxxxx Xxxxx Boult Xxxxxxxx LLPa Perfection Certificate, Delaware counsel for duly executed and delivered by all Person who will be Loan Parties on the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-2 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.Funding Date;
(xiiih) An opinion of Xxxx Xxxxx LLP, Maryland counsel for the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-3 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.[reserved]; and
(xiv) An opinion of Sidley Austin LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent.
(xv) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit.
(xvi) A certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, stating that after giving effect to the Initial Extension of Credit and the Formation Transactions, the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04 on a pro forma basis as of the most recent fiscal quarter end, together with supporting information in form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants.
(b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and its Subsidiaries, including the terms and conditions of the charter and bylaws, operating agreement, partnership agreement or other governing document of each of them.
(c) The Loan Parties shall have no Debt, other than Existing Debt and other Debt permitted under this Agreement.
(d) Before and after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred no material adverse change in the business, condition (financial or otherwise), results of operations or prospects of the Loan Parties or any of the Borrowing Base Assets on the Closing Date since December 31, 2010.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to result evidence that all consents, authorizations and approvals of, and filings and registrations with, and all other actions in a Material Adverse Effect respect of, any Governmental Authority or other than the matters described on Schedule 4.01(e) hereto (the “Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or Person required in connection with the consummation of the transactions contemplated thereby, and there shall have been no adverse change in hereunder or the status, or financial effect on conduct of any Effective Date Loan Party or any of its Subsidiaries, of the Material Litigation from that described on Schedule 4.01(e) hereto.
(f) All governmental and third party consents and approvals necessary in connection with the transactions contemplated Party’s business as required by the Loan Documents shall this Agreement have been obtained (without and are in full force and effect. By executing this Agreement the imposition Agent and each Lender shall been deemed to be satisfied with, or to have waived, any and all of any conditions that are not acceptable to the Lender Parties) and shall remain in effectabove-listed conditions, and no law or regulation this Agreement shall be applicable in the reasonable judgment effective as of the Lender Parties that restrainsdate of such execution, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documentsnotwithstanding any other provision herein.
(g) The Borrower shall have entered into the Hedge Agreements required under Section 5.01(o) to the extent any are required by such Section, and shall have provided satisfactory evidence of the same to the Administrative Agent.
(h) The organizational documents for each Subsidiary Guarantor shall comply with the Subsidiary Guarantor Requirements.
(i) The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties required under this Agreement and all reasonable, out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent).
Appears in 1 contract
Samples: Loan and Security Agreement (Capitol Investment Corp. V)
Conditions Precedent to the Effectiveness of this Agreement. The obligation of the Administrative Agent and each Lender Party to execute and deliver this Agreement and the effectiveness of this Agreement is subject to the satisfaction receipt by IBM Credit of, or waiver in writing by IBM Credit of compliance with, the following conditions precedent before or concurrently with the Closing Dateprecedent:
(aA) The Administrative Agent shall have received on or before the Closing Date the following, this Agreement executed and delivered by each dated such day (unless otherwise specified), in form Loan Party and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party:IBM Credit;
(iB) A Note duly executed by the Borrower and payable to the order a favorable opinion of each Lender.
(ii) Completed requests counsel for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party and, in the case of UCC searches, listing all effective financing statements filed in the jurisdictions that the Administrative Agent may deem necessary or desirable that name any Loan Party as debtor, together with copies of such financing statements.
(iii) This Agreement, duly executed by the Loan Parties and in substantially the other parties thereto.form of Attachment M;
(ivC) Certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(v) A copy of a certificate of the Secretary of State (secretary or equivalent authority) of the jurisdiction of incorporation, organization or formation of each Loan Party and of each general partner, manager or managing member (if any) an assistant secretary of each Loan Party, dated reasonably near substantially in the Closing Dateterm and substance of Attachment I hereto, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Partycertifying that among other items, (A) as to a true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner, manager or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office, (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner, manager or managing member, as the case may be, on file in such Secretary’s office, (2i) such Loan Party, general partner, manager or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan Party, general partner, manager or managing member, as the case may be, Party is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction State of its organization or incorporation and has its principal place of business as stated therein, (ii) such Loan Party is registered to conduct business in specified states and localities, (iii) true and complete copies of the articles of incorporation, organization or formation.
(vi) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner, manager or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party, general partner, manager or managing member, that such Loan Party, general partner, manager or managing member, as the case may be, is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate.
(vii) A certificate of each Loan Party and of each general partner, manager or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner, manager or managing membercorresponding organizational documents, as applicable, by its President or a Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the constitutive documents by-laws of such Loan PartyParty are delivered therewith, general partner, manager or managing member, as applicable, since the date of the certificate referred to in Section 3.01(a)(vi), (B) a true together with all amendments and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner, manager or managing member, as applicable, addenda thereto as in effect on the date on which the resolutions referred to in Section 3.01(a)(v) were adopted and on the Closing Datethereof, (Civ) the due incorporationresolution as stated in the certificate is a true, organization or formation accurate and good standing or valid existence compared copy of the resolution adopted by such Loan Party's Board of Directors or, general partner, manager or managing member, as applicable, as if such Loan Party is a corporation, limited liability company or partnership organized under the laws of the jurisdiction of its incorporationcompany, organization or formation and the absence of any proceeding for the dissolution or liquidation of by such Loan Party's authorized members authorizing the execution, general partnerdelivery and performance of this Agreement and each Other Document executed and delivered in connection herewith, manager or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents and (Ev) the absence of any event occurring and continuing, or resulting from the closing hereunder or the Advance made on the Closing Date, that constitutes a Default.
(viii) A certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner, manager or managing member of any Loan Party) and of each general partner, manager or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the general partner, manager or managing member of such Loan Party, Party authorized to sign each Loan Document to which it is or is to be a party this Agreement and the other documents to be delivered hereunder and thereunder.Other Documents;
(ixD) Such financial, business and certificates dated as of a recent date from the Secretary of State or other information regarding appropriate authority evidencing the good standing of each Loan Party in the jurisdiction of its organization and in each other jurisdiction where the ownership or lease of its Subsidiaries as property or the Lender Parties shall have requestedconduct of its business requires it to qualify to do business;
(E) copies of all approvals and consents from any Person, includingin each case in form and substance satisfactory to IBM Credit, without limitationwhich are required to enable each Loan Party to authorize, information as to possible contingent liabilitiesor required in connection with, tax matters(a) the execution, environmental matters, obligations under Plans, Multiemployer Plans delivery or performance of this Agreement and Welfare Plans, collective bargaining agreements and other arrangements with employees, historical operating statements (if any), audited annual financial statements for the year ending December 31, 2010, interim financial statements dated the end each of the most recent fiscal quarter for which financial statements are available Other Documents, and (orb) the legality, in the event the Lender Parties’ due diligence review reveals material changes since such financial statementsvalidity, as binding effect or enforceability of a later date within 45 days this Agreement and each of the Closing Date) and financial projections for the Parent Guarantor’s consolidated operations.Other Documents;
(xF) Evidence of insurance (which may consist of binders or certificates of insurance) naming the Administrative Agent as loss payee and/or additional insured, as applicable, with such responsible a lockbox agreement executed by Customer and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, the insurance required by the terms of this Agreement.
(xi) An opinion of Xxxxxxxxx Xxxxxxx LLP, New York counsel for the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xii) An opinion of Xxxxxxx Xxxxx Boult Xxxxxxxx LLP, Delaware counsel for the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-2 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xiii) An opinion of Xxxx Xxxxx LLP, Maryland counsel for the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-3 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xiv) An opinion of Sidley Austin LLP, counsel for the Administrative Agenteach Bank, in form and substance satisfactory to the Administrative Agent.IBM Credit;
(xvG) A Notice of Borrowing or Notice of Issuance, as applicable, relating a contingent blocked account agreement executed by Customer and each Bank in form and substance satisfactory to the Initial Extension of IBM Credit.;
(xviH) A certificate signed by a Responsible Officer of the Borrowerintercreditor agreements ("Intercreditor Agreement"), dated the Closing Date, stating that after giving effect to the Initial Extension of Credit and the Formation Transactions, the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04 on a pro forma basis as of the most recent fiscal quarter end, together with supporting information in form and substance satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants.
(b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization IBM Credit, executed by each other secured creditor of each Loan Party and its Subsidiaries, including the terms and conditions of the charter and bylaws, operating agreement, partnership agreement or other governing document of each of them.as set forth in Attachment A;
(cI) The UCC-1 financing statements for each jurisdiction reasonably requested by IBM Credit executed by each Loan Parties Party and each guarantor whose guaranty to IBM Credit is intended to be secured by a pledge of its assets;
(J) the statements, certificates, documents, instruments, financing statements, agreements and information set forth in Attachment A and Attachment B; and
(K) all such other statements, certificates, documents, instruments, financing statements, agreements and other information with respect to the matters contemplated by this Agreement as IBM Credit shall have no Debt, other than Existing Debt and other Debt permitted under this Agreementreasonably requested.
(d) Before and after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred no material adverse change in the business, condition (financial or otherwise), results of operations or prospects of the Loan Parties or any of the Borrowing Base Assets on the Closing Date since December 31, 2010.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to result in a Material Adverse Effect other than the matters described on Schedule 4.01(e) hereto (the “Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby, and there shall have been no adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Material Litigation from that described on Schedule 4.01(e) hereto.
(f) All governmental and third party consents and approvals necessary in connection with the transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents.
(g) The Borrower shall have entered into the Hedge Agreements required under Section 5.01(o) to the extent any are required by such Section, and shall have provided satisfactory evidence of the same to the Administrative Agent.
(h) The organizational documents for each Subsidiary Guarantor shall comply with the Subsidiary Guarantor Requirements.
(i) The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties required under this Agreement and all reasonable, out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent).
Appears in 1 contract
Samples: Inventory and Working Capital Financing Agreement (Multiple Zones Inc)
Conditions Precedent to the Effectiveness of this Agreement. The obligation of the Administrative Agent and each Lender Party to execute and deliver this Agreement and the effectiveness of this Agreement is subject to the satisfaction of the following conditions precedent before or concurrently with that the Closing Date:
(a) The Administrative Agent shall have received received, on or before the Closing Date Effective Date, the following, each dated such day (the Effective Date unless otherwise specified)indicated, in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficientif any) in sufficient copies for each Lender PartyLender:
(i) A Note duly executed by the Borrower and payable to the order of each Lender.
(ii) Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party and, in the case of UCC searches, listing all effective financing statements filed in the jurisdictions that the Administrative Agent may deem necessary or desirable that name any Loan Party as debtor, together with copies of such financing statements.
(iiia) This Agreement, duly executed and delivered by the Loan Parties Borrower, in form and substance satisfactory to the Agent and the other parties theretoLenders.
(ivb) A Note to the order of each Lender who requests a Note pursuant to Section 2.1(c).
(c) Certified copies of (i) the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for approving the Loan Documents to which it is the ultimate signatory approving the transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party, and of (ii) all documents evidencing other necessary corporate action and required governmental and other third party approvals approvals, licenses and consents, if any, consents with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a partyand the transactions contemplated thereby.
(vd) A copy of a the articles or certificate of incorporation of each Loan Party certified as of a recent date by the Secretary of State (or equivalent authority) of the jurisdiction state of incorporation, organization or formation of each Loan Party and of each general partner, manager or managing member (if any) of each Loan Party, dated reasonably near the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type incorporation of such Loan Party, (A) as to a true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document together with certificates of such Loan Party, general partner, manager or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office, (B) that (1) such amendments are the only amendments official attesting to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner, manager or managing member, as the case may be, on file in such Secretary’s office, (2) such Loan Party, general partner, manager or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan Party, general partner, manager or managing member, as the case may be, is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(vi) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner, manager or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party, general partner, manager or managing member, that such Loan Party, general partner, manager or managing member, as and a copy of the case may be, is duly qualified certificate of incorporation and in good standing as a foreign corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate.
(vii) A certificate By-Laws of each Loan Party and certified as of the Effective Date by the Secretary or an Assistant Secretary of each general partner, manager or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner, manager or managing member, as applicable, by its President or a Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the constitutive documents of such Loan Party, general partner, manager or managing member, as applicable, since the date of the certificate referred to in Section 3.01(a)(vi), (B) a true and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner, manager or managing member, as applicable, as in effect on the date on which the resolutions referred to in Section 3.01(a)(v) were adopted and on the Closing Date, (C) the due incorporation, organization or formation and good standing or valid existence of such Loan Party, general partner, manager or managing member, as applicable, as a corporation, limited liability company or partnership organized under the laws of the jurisdiction of its incorporation, organization or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner, manager or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents and (E) the absence of any event occurring and continuing, or resulting from the closing hereunder or the Advance made on the Closing Date, that constitutes a Default.
(viiie) A certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner, manager or managing member of any Loan Party) and of each general partner, manager or managing member (if any) of each Loan Party certifying the names and true signatures of the officers each officer of such Loan Party who has been authorized to execute and deliver any Loan Document or other document required hereunder to be executed and delivered by or on behalf of such Loan Party, or of the general partner, manager or managing member of such Loan Party, authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(ixf) Such financialCertified copies of Requests for Information or Copies (Form UCC-11), business and other information regarding each or equivalent reports, listing all effective financing statements which name any Loan Party (under its present name and its Subsidiaries or previous name) as the Lender Parties shall have requesteddebtor, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and together with copies of such other arrangements with employees, historical operating financing statements (if anynone of which shall cover the Collateral purported to be covered by such Amended and Restated Security Agreement except as otherwise permitted by the Loan Documents), audited annual financial statements for the year ending December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lender Parties’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the Closing Date) and financial projections for the Parent Guarantor’s consolidated operations.; and
(xg) Evidence of insurance (which may consist of binders or certificates of insurance) naming the Administrative Agent as loss payee and/or additional insured, as applicable, with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, that the insurance required by the terms of this Agreementthe Collateral Documents and by Section 6.4 is in full force and effect.
(xih) An opinion Executed copies of Xxxxxxxxx Xxxxxxx LLP, New York financing statements in appropriate form for filing under the Uniform Commercial Code of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Collateral Documents.
(i) Favorable opinions of counsel for to the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-1 hereto form of EXHIBIT J, and as to such other matters as any Lender Party or Issuer through the Administrative Agent may reasonably request.
(xii) An opinion , together with a copy of Xxxxxxx Xxxxx Boult Xxxxxxxx LLP, Delaware counsel for the Loan Parties, opinions rendered by such firms with respect to the enforceability of the Securitization Documents and related matters (accompanied by a letter to the effect that the Agent, the Lenders and in substantially the form) set forth in Exhibit E-2 hereto and as to such other matters as any Lender Party through the Administrative Agent Issuer may reasonably requestrely thereon.
(xiii) An opinion of Xxxx Xxxxx LLP, Maryland counsel for the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-3 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xiv) An opinion of Sidley Austin LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent.
(xvj) A Notice of Borrowing or Notice of Issuancecertificate, as applicable, relating to the Initial Extension of Credit.
(xvi) A certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, stating that after giving effect to the Initial Extension of Credit and the Formation Transactions, the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04 on a pro forma basis as each of the most recent fiscal quarter endconditions specified in Sections 3.2(a), together with supporting information in form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants.
(b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and its Subsidiaries), including the terms and conditions of the charter and bylaws, operating agreement, partnership agreement or other governing document of each of them.
(c) The Loan Parties shall have no Debt, other than Existing Debt and other Debt permitted under this Agreement.
(d) Before and after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred no material adverse change in the business, condition (financial or otherwise), results of operations or prospects of the Loan Parties or any of the Borrowing Base Assets on the Closing Date since December 31, 2010.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to result in a Material Adverse Effect other than the matters described on Schedule 4.01(e) hereto (the “Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby, and there shall have been no adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Material Litigation from that described on Schedule 4.01(e) hereto.
(f) All governmental and third party consents and approvals necessary in connection with the transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents.
(g) The Borrower shall have entered into the Hedge Agreements required under Section 5.01(o) to the extent any are required by such Section, and shall have provided satisfactory evidence of the same to the Administrative Agent.
(h) The organizational documents for each Subsidiary Guarantor shall comply with the Subsidiary Guarantor Requirements.
(i) The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties required under this Agreement and all reasonable, out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent).3.3
Appears in 1 contract
Conditions Precedent to the Effectiveness of this Agreement. The obligation of the Administrative Agent and each Lender Party to execute and deliver this Agreement and the effectiveness of this Agreement is subject to the satisfaction of the following conditions precedent before or concurrently with the Closing Date:
(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 Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party:
(i) A Note Notes duly executed by the Borrower and payable to the order of each applicable Lender.
(ii) Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party and, in the case of UCC searches, listing all effective financing statements filed in the jurisdictions that the Administrative Agent may deem necessary or desirable that name any Loan Party as debtor, together with copies of such financing statements.
(iii) This Agreement, duly executed by the Loan Parties and the other parties thereto.
(iv) Certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(v) A copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of incorporation, organization or formation of each Loan Party and of each general partner, manager or managing member (if any) of each Loan Party, dated reasonably near the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner, manager or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office, (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner, manager or managing member, as the case may be, on file in such Secretary’s office, (2) such Loan Party, general partner, manager or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan Party, general partner, manager or managing member, as the case may be, is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(vi) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner, manager or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party, general partner, manager or managing member, that such Loan Party, general partner, manager or managing member, as the case may be, Party is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate.
(vii) A certificate of each Loan Party and of each general partner, manager or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner, manager or managing member, as applicable, by its President or a Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the constitutive documents of such Loan Party, general partner, manager or managing member, as applicable, since the date of the certificate referred to in Section 3.01(a)(vi), (B) a true and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner, manager or managing member, as applicable, as in effect on the date on which the resolutions referred to in Section 3.01(a)(v) were adopted and on the Closing Date, (C) the due incorporation, organization or formation and good standing or valid existence of such Loan Party, general partner, manager or managing member, as applicable, as a corporation, limited liability company or partnership organized under the laws of the jurisdiction of its incorporation, organization or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner, manager or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents and (E) the absence of any event occurring and continuing, or resulting from the closing hereunder or the Advance made on the Closing Date, that constitutes a Default.
(viii) A certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner, manager or managing member of any Loan Party) and of each general partner, manager or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the general partner, manager or managing member of such Loan Party, authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(ix) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, historical operating statements (if any), audited annual financial statements for the year ending December 31, 20102011, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lender Parties’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the Closing Date) and financial projections for the Parent Guarantor’s consolidated operations.
(x) Evidence of insurance (which may consist of binders or certificates of insurance) naming the Administrative Agent as loss payee and/or additional insured, as applicable, with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, the insurance required by the terms of this Agreement.
(xi) An opinion of Xxxxxxxxx Xxxxxxx Gxxxxxxxx Txxxxxx LLP, New York counsel for the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-1 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xii) An opinion of Xxxxxxx Bxxxxxx Xxxxx Boult Xxxxxxxx Cxxxxxxx LLP, Delaware counsel for the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-2 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xiii) An opinion of Xxxx Sxxx Xxxxx LLP, Maryland counsel for the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-3 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xiv) An opinion of Sidley Austin LLPllp, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent.
(xv) A Notice of Borrowing or Notice of Issuance, as applicable, relating to the Initial Extension of Credit.
(xvi) A certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, stating that after giving effect to the Initial Extension of Credit and the Formation TransactionsCredit, the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04 on a pro forma basis as of the most recent fiscal quarter end, together with supporting information in form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants.
(b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and its Subsidiaries, including the terms and conditions of the charter and bylaws, operating agreement, partnership agreement or other governing document of each of them.
(c) The Loan Parties shall have no Debt, other than Existing Debt and other Debt permitted under this Agreement.
(d) Before and after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred no material adverse change in the business, condition (financial or otherwise), results of operations or prospects of the Loan Parties or any of the Borrowing Base Assets on the Closing Date since December 31, 20102011.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to result in a Material Adverse Effect other than the matters described on Schedule 4.01(e) hereto (the “Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby, and there shall have been no adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Material Litigation from that described on Schedule 4.01(e) hereto.
(f) All governmental and third party consents and approvals necessary in connection with the transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents.
(g) The Borrower shall have entered into the Hedge Agreements required under Section 5.01(o) to the extent any are required by such Section, and shall have provided satisfactory evidence of the same to the Administrative Agent.
(h) The organizational documents for each Subsidiary Guarantor shall comply with the Subsidiary Guarantor Requirements; provided, however, that the organizational documents of each Subsidiary Guarantor party to the Existing Credit Agreement shall be deemed to comply with the Subsidiary Guarantor Requirements.
(i) The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties required under this Agreement and all reasonable, out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent).
Appears in 1 contract
Conditions Precedent to the Effectiveness of this Agreement. The obligation of the Administrative Agent and each Lender Party to execute and deliver this Agreement and the effectiveness of this Agreement is subject to the satisfaction of the following conditions precedent before or concurrently with that the Closing Date:
(a) The Administrative Agent shall have received received, on or before the Closing Date Effective Date, the following, each dated such day (the Effective Date unless otherwise specified)indicated, in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Revolving Credit Notes, as to which one original of each shall be sufficientif any) in sufficient copies for each Lender PartyLender:
(i) A Note duly executed by the Borrower and payable to the order of each Lender.
(ii) Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party and, in the case of UCC searches, listing all effective financing statements filed in the jurisdictions that the Administrative Agent may deem necessary or desirable that name any Loan Party as debtor, together with copies of such financing statements.
(iiia) This Agreement, duly executed and delivered by the Loan Parties Borrower, in form and substance satisfactory to the Agent and the other parties theretoLenders.
(ivb) A Revolving Credit Note, duly executed and delivered by the Borrower, to the order of each Lender who requests a Revolving Credit Note pursuant to SECTION 2.1(c).
(c) The Guaranty, duly executed and delivered by the Guarantors, in form and substance satisfactory to the Agent and the Lenders.
(d) The Security Agreement, duly executed and delivered by each of the Loan Parties, in form and substance satisfactory to the Agent and the Lenders.
(e) Certified copies of (i) the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for approving the Loan Documents to which it is the ultimate signatory approving the transactions contemplated by the Loan Documents a party and each Loan Document to which it or such Loan Party is or is to be a party, and of (ii) all documents evidencing other necessary corporate or other action and required governmental and other third third-party approvals approvals, licenses and consents, if any, consents with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a partyand the transactions contemplated thereby.
(vf) A copy of a the articles or certificate of incorporation (or equivalent governing document) of each Loan Party certified as of a recent date by the Secretary of State (or equivalent authority) of the jurisdiction state of incorporation, organization or formation of each Loan Party and of each general partner, manager or managing member (if any) of each Loan Party, dated reasonably near the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document together with certificates of such Loan Party, general partner, manager or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office, (B) that (1) such amendments are the only amendments official attesting to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner, manager or managing member, as the case may be, on file in such Secretary’s office, (2) such Loan Party, general partner, manager or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan Party, general partner, manager or managing member, as the case may be, is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(vi) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner, manager or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party, general partner, manager and a copy of the certificate of incorporation and the by-laws (or managing member, that such Loan Party, general partner, manager or managing member, as the case may be, is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate.
(viiother equivalent governing documents) A certificate of each Loan Party and certified as of the Effective Date by the Secretary or an Assistant Secretary of each general partner, manager or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner, manager or managing member, as applicable, by its President or a Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the constitutive documents of such Loan Party, general partner, manager or managing member, as applicable, since the date of the certificate referred to in Section 3.01(a)(vi), (B) a true and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner, manager or managing member, as applicable, as in effect on the date on which the resolutions referred to in Section 3.01(a)(v) were adopted and on the Closing Date, (C) the due incorporation, organization or formation and good standing or valid existence of such Loan Party, general partner, manager or managing member, as applicable, as a corporation, limited liability company or partnership organized under the laws of the jurisdiction of its incorporation, organization or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner, manager or managing member, as applicable, (D) the truth of the representations and warranties contained in the Loan Documents and (E) the absence of any event occurring and continuing, or resulting from the closing hereunder or the Advance made on the Closing Date, that constitutes a Default.
(viiig) A certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner, manager or managing member of any Loan Party) and of each general partner, manager or managing member (if any) of each Loan Party certifying the names and true signatures of the officers each officer of such Loan Party who has been authorized to execute and deliver any Loan Document or any other document required hereunder to be executed and delivered by or on behalf of such Loan Party, or of the general partner, manager or managing member of such Loan Party, authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(ixh) Such financialCertified copies of Requests for Information or Copies (Form UCC-11), business and other information regarding each or equivalent reports, listing all effective financing statements which name any Loan Party (under its present name and its Subsidiaries or previous name) as the Lender Parties shall have requesteddebtor, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and together with copies of such other arrangements with employees, historical operating financing statements (if anynone of which shall cover the Collateral purported to be covered by the Pledge and Security Agreement, except as otherwise permitted by the Loan Documents), audited annual financial statements for the year ending December 31, 2010, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lender Parties’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the Closing Date) and financial projections for the Parent Guarantor’s consolidated operations.
(xi) Evidence of insurance (which may consist of binders or certificates of insurance) naming the Administrative Agent as loss payee and/or additional insured, as applicable, with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, that the insurance required by the terms of this Agreementthe Collateral Documents and by SECTION 6.4 is in full force and effect.
(xij) An opinion Copies of Xxxxxxxxx Xxxxxxx LLP, New York financing statements in appropriate form for filing under the UCC of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Collateral Documents.
(k) Favorable opinions of counsel for to the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-1 hereto form of EXHIBIT I, and as to such other matters as any Lender Party or Issuer through the Administrative Agent may reasonably request.
(xii) An opinion , together with a copy of Xxxxxxx Xxxxx Boult Xxxxxxxx LLP, Delaware counsel for the Loan Parties, opinions rendered by such firms with respect to the enforceability of the Securitization Documents and related matters accompanied by a letter to the effect that the Agent, the Lenders and the Issuer may rely thereon (and or language in substantially the form) set forth in Exhibit E-2 hereto and as such opinions to such other matters as any Lender Party through the Administrative Agent may reasonably requesteffect).
(xiii) An opinion of Xxxx Xxxxx LLP, Maryland counsel for the Loan Parties, with respect to the matters (and in substantially the form) set forth in Exhibit E-3 hereto and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xiv) An opinion of Sidley Austin LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent.
(xvl) A Notice of Borrowing or Notice of Issuancecertificate, as applicable, relating to the Initial Extension of Credit.
(xvi) A certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, stating that after giving effect to the Initial Extension of Credit and the Formation Transactions, the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04 on a pro forma basis as each of the most recent fiscal quarter end, together with supporting information conditions specified in form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants.
(bSECTIONS 3.2(a) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and its Subsidiaries, including the terms and conditions of the charter and bylaws, operating agreement, partnership agreement or other governing document of each of them.
(c) The Loan Parties shall have no Debt, other than Existing Debt and other Debt permitted under this Agreement.
through (d) Before and after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred no material adverse change in the business, condition (financial or otherwise), results of operations or prospects of the Loan Parties or any of the Borrowing Base Assets on the Closing Date since December 31, 2010.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to result in a Material Adverse Effect other than the matters described on Schedule 4.01(e) hereto (the “Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby, and there shall have been no adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Material Litigation from that described on Schedule 4.01(e) hereto.
(f) All governmental and third party consents and approvals necessary in connection with the transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents.
(g) The Borrower shall have entered into the Hedge Agreements required under Section 5.01(o) to the extent any are required by such Section, and shall have provided satisfactory evidence of the same to the Administrative Agent.
(h) The organizational documents for each Subsidiary Guarantor shall comply with the Subsidiary Guarantor Requirements.
(i) The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties required under this Agreement and all reasonable, out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent).3.3
Appears in 1 contract
